                                                                                          February 5 2013


                                          DA 12-0465

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2013 MT 27N



BRIAN SPINKS,

               Plaintiff and Appellant,

         v.

TODD WHIPPLE, and MARTY LAMBERT,

               Defendants and Appellees.


APPEAL FROM:           District Court of the Eighteenth Judicial District,
                       In and For the County of Gallatin, Cause No. DV-12-325C
                       Honorable John C. Brown, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Brian Spinks (self-represented), Deer Lodge, Montana

                For Appellee:

                       Steven R. Milch, Crowley Fleck PLLP, Billings, Montana



                                                   Submitted on Briefs: January 3, 2013
                                                              Decided: February 5, 2013




Filed:


                       __________________________________________
                                         Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Brian Spinks (Spinks) appeals from an order entered by the Eighteenth Judicial

District Court, Gallatin County, granting Defendants’ motion to dismiss. We affirm.

¶3     On January 12, 2011, Spinks was charged by Information with violating an order of

protection. The Information was signed by Chief Deputy Gallatin County Attorney, Todd S.

Whipple (Whipple). On September 26, 2011, Whipple moved to dismiss the action without

prejudice on the basis that jurisdictional venue was more appropriate in Toole County, where

the alleged offense occurred. The District Court granted the motion and dismissed the action

without prejudice.

¶4     On May 10, 2012, Spinks filed a complaint against Whipple and Gallatin County

Attorney Marty Lambert (Lambert). The complaint asserts that Spinks was falsely arrested,

wrongfully charged, falsely imprisoned, and maliciously prosecuted. According to the

complaint, all of the claims stem from Whipple “intentionally and maliciously, illegally

charging Plaintiff Brian Spinks in the wrong jurisdiction.” Spinks later moved to join

Gallatin County as a defendant in the action. On June 21, 2012, Whipple and Lambert

moved to dismiss the action with prejudice based on absolute prosecutorial immunity.

¶5     The District Court granted Whipple and Lambert’s motion to dismiss. The court

stated that “all [of Spinks’] claims derive from allegations that he was ‘illegally charged’

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with a criminal offense which was subsequently dismissed.” Therefore, the court reasoned,

Spinks’ allegations focus entirely on Whipple and Lambert’s prosecutorial discretion in

deciding whether to institute a criminal prosecution against a plaintiff, and if so on what

charges. Determining that such actions are protected by absolute prosecutorial immunity, the

court dismissed Spinks’ complaint with prejudice. The court also denied Spinks’ motion to

join Gallatin County on the basis of mootness. Spinks appeals.

¶6     We review de novo a district court’s decision on a motion to dismiss. Martin v. Artis,

2012 MT 249, ¶ 8, 366 Mont. 513, 290 P.3d 687 (citation omitted). We “‘construe the

complaint in a light most favorable to the plaintiff, deeming all factual allegations to be

true.’” Martin, ¶ 8 (quoting Fellows v. Off. of Water Comm’r, 2012 MT 169, ¶ 11, 365

Mont. 540, 258 P.3d 448). We will affirm a dismissal “‘only if [we] find[] that the plaintiff

is not entitled to relief under any set of facts that could be proven in support of the claims.’”

Martin, ¶ 8 (quoting Fellows, ¶ 11).

¶7      A decision as to whether or not to prosecute and what charge to bring against an

individual is entirely within the discretion of the prosecutor. Helena Parents Comm’n v.

Lewis & Clark Co. Comm’rs, 277 Mont. 367, 375, 922 P.2d 1140, 1145 (1996) (citation

omitted). “Filing and maintaining criminal charges are among the many duties of a

prosecutor and when a prosecutor acts within the scope of these duties, that prosecutor is

absolutely immune from civil liability, regardless of negligence or lack of probable cause.”

Rosenthal v. Co. of Madison, 2007 MT 277, ¶ 29, 339 Mont. 419, 170 P.3d 493 (citations

omitted). We have stated that filing and dismissing criminal complaints are “precisely the

type of conduct that the prosecutorial immunity doctrine was designed to protect.”

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Rosenthal, ¶ 29. If we did not grant such prosecutorial immunity, “‘[t]here would always be

a question of possible civil action in case[s] the prosecutor saw fit to move dismissal of the

case. . . . The work of the prosecutor would thus be impeded . . . . ’” Rosenthal, ¶ 29

(quoting Imbler v. Pachtman, 424 U.S. 409, 423-24, 96 S. Ct. 984, 992 (1976)).

¶8     Here, all of the allegations included in the complaint pertain to Whipple’s initiation of

a criminal prosecution against Spinks—a matter within Whipple’s prosecutorial discretion.

Because Spinks did not allege any conduct on the part of either Whipple or Lambert that fell

outside the scope of absolute prosecutorial immunity, the District Court correctly dismissed

his action with prejudice.

¶9     Spinks argues for the first time on appeal that Whipple is not protected by the doctrine

of absolute prosecutorial immunity because he stepped out of his scope as prosecutor and

acted as a witness when he filed an affidavit of probable cause and motion for leave to file

information. In support of his contention, he relies on the Supreme Court decision in Kalina

v. Fletcher, 522 U.S. 118, 118 S. Ct. 502 (1997). It is well-established that this Court will

not consider a change in legal theory or new arguments raised for the first time on appeal

because of the “fundamental unfairness of faulting a district court for failing to rule correctly

on an issue it was never given the opportunity to consider.” Schlemmer v. N. Cent. Life Ins.

Co., 2001 MT 256, ¶ 22, 307 Mont. 203, 37 P.3d 63 (citations omitted). Consequently, we

decline to consider Spinks’ argument further.

¶10    We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our

Internal Operating Rules, which provides for noncitable memorandum opinions.

¶11    Affirmed.

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                          /S/ Michael E Wheat


We Concur:

/S/ Mike McGrath
/S/ Jim Rice
/S/ Patricia Cotter
/S/ Brian Morris




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