Pfeiffer v. Hartford Fire Insurance CompanyPfeiffer v. Hartford Fire Insurance Company
Richard B. Caschette and John R. Mann of Cooper & Kelley, P.C., Denver, Colo., for Robert Brittain, M.D.
F. Michael Ludwig and Clifton J. Latiolais, Jr. of Wood, Ris & Hames, P.C., Denver, Colo., for Colorado State Atty. Gen., Ann Sayvetz, David Burlage, and William Richardson.
BALDOCK, Circuit Judge.
This appeal arises out of an action filed by appellant Richard E. Pfeiffer against his medical malpractice insurer, the Colorado Attorney General, several Colorado assistant attorneys general and others in connection with disciplinary proceedings brought against him by the Colorado State Board of Medical Examiners. The princiрal issues on appeal concern the district court‘s refusal to remand this action to state court after Pfeiffer attempted to add nondiverse defendants to his complaint, its decision on summary judgment that the Colorado assistant attorneys general were absolutely immune from liability under
Background
The following facts are undisputed unless otherwise noted:
Appellant Pfeiffer is a medical doctor who, at the times relevant to this proceeding, practiced in the area of obstetrics and gynecology in Colorado Springs. In 1979, defendant Memorial Hospital suspended Pfeiffer‘s staff privileges because of his refusal to treat an indigent patient. During this same period, three of Dr. Pfeiffer‘s patients accused him of sexual misconduct during the course of their care. Both of these incidents came to the attention of the Colorado State Board of Medical Examiners (Board), and led it to initiate a complaint of unprofessional conduct against Dr. Pfeiffer on October 24, 1979. As required by
The Board‘s inquiry panel apparently completed its investigation in early 1980 because on January 17, 1980, the Board voted to refer the matter to the Colorado Attorney General‘s office for preparation of a formal complaint seeking disciplinary action against Pfeiffer. Id., Ex. E; see
In or before December of 1980, Sayvetz and the Board learned that Penrose Hospital had recently taken disciplinary action against Pfeiffer in connection with one of his patient‘s delivery of a stillborn child. See Rec.Vol. I, Doc. 162, Ex. 7. In response to this information, Sayvetz briefly discussed thе incident by telephone with the hospital‘s Director of Medical Affairs and wrote him a letter informing him that a Board investigator would be contacting the hospital for additional information. Id. On March 12, 1981, the Board voted to add the Penrose incident to the formal complaint being prepared by the Attorney General‘s office. Rec.Vol. I, Doc. 151, Ex. D.
Sometime after the Attorney General‘s office began preparation of this complaint, Pfeiffer requested that all Board proceedings against him be kept confidential until, at minimum, the Board had heard and decided his case. Coe v. District Court, 676 F.2d 411, 413, 415 (10th Cir.1982). The Board‘s hearing panel agreed to this request on the condition that Pfeiffer surrender his license to practice mеdicine in Colorado pending the outcome of the proceedings. Pfeiffer rejected this offer and, using a fictitious name, filed an action for injunctive and declaratory relief in federal district court to restrain the Board from publicizing the charges against him. Id. On March 4, 1982, the district court dismissed Pfeiffer‘s complaint on the ground that Pfeiffer could not proceed under a fictitious name. Pfeiffer then petitioned this court for a writ of mandamus or prohibition. On April 21, 1982, we denied that petition upon determining that Pfeiffer had no due process or other right to compel the Board to conduct its proceedings against him in secret.
On May 10, 1982, shortly after this resolution of the confidentiality issue, the Board filed the formal complaint against Pfeiffer that had been prepared by the Colorado Attorney General‘s office. Rec.Vol. I, Doc. 151, Ex. A. The complaint charged Pfeiffer with professional misconduct in violation of the Colorado Medical Practices Act in connection with both the Memorial and Penrose Hospital incidents and the three reported incidents of sexual relations with patients.
Sometime during this period, Pfeiffer alleges that the individual state attorneys granted newspaper reporters access to their files on his case, resulting in the publication of the formal charges against him. Rec.Vol. I, Doc. 61, ¶ 28. Although there is no evidence in the record indicating when this alleged “press leak” happened, the partiеs appear to agree that it occurred in May 1982, after our decision in Coe but before the Board formally filed charges against Pfeiffer. Opening Brief at 10-11; State Defendants‘s Answer Brief at 29. Pfeiffer also alleges that the individual state attorneys later released discovery materials to the press during the Board‘s proceedings.
The Board conducted public hearings on the Pfeiffer charges between October 1982 and August 1983. In an order dated January 24, 1984, it concluded the matter by dismissing all charges other than that relating to the stillbirth at Penrose Hospital. Rec.Vol. I, Doc. 162, Ex. 14. With respect to that incident, the Board found that Pfeiffer‘s actions leading up to the stillbirth violated
In August, 1985, Pfeiffer filed this action in the Colorado District Court for Arapahoe County against his medical malpractice insurer, defendant Hartford Fire Insurance Company, for its alleged misconduct in defending him before the Board. Hartford removed this action to the United States District Court for the District of Colorado on the basis of complete diversity of citizenship between the parties. Pfeiffer responded by amending his complaint to assert state common law tort and/or federal civil rights claims based on
The district court next entertained a flurry of motions to dismiss and for summary judgment from the new defendants. These motions ultimately led the court to dismiss Pfeiffer‘s
Before granting the individual state attorneys summary judgment on the basis of prosecutorial immunity, the district court also considered these defendants’ motion to dismiss Pfeiffer‘s
On September 28, 1989, Pfeiffer moved to certify each of the orders described above as final. The district court granted this motion and on December 13, 1989, entered a final judgment of dismissal as to all defendants other than Hartford. This appeal with respect to certain of the claims against Dr. Brittain, the Colorado Attorney General and the individual state attorneys timely followed.4
Discussion
Pfeiffer raises three issues on appeal: (1) whether the district court erred in failing to remand this action to state court after Pfeiffer amended his complaint to add claims against nondiverse defendants; (2) whether the district court erred in holding on summary judgment that the individual state attorneys were absolutely immune from Pfeiffer‘s
A. Failure to remand to state court
Pfeiffer contends that remand was mandatory in this case because his post-removal addition of claims against Dr. Brittain and other nondiverse defendants rendered his action “improvidently removed” under
The error of this argument is its assumption that a party may force remand of an action after its removal from state court by amending the complaint to destroy the federal court‘s jurisdiction over the action. Instead, the propriety of removal is judged on the complaint as it stаnds at the time of the removal. Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S.Ct. 347, 349, 83 L.Ed. 334 (1939) (right to remove is determined according to plaintiff‘s pleadings at the time of the petition for removal); Swanigan v. Amadeo Rossi, S.A., 617 F.Supp. 66, 67 (E.D.Mich.1985) (same); see St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294, 58 S.Ct. 586, 593, 82 L.Ed. 845 (1938) (barring post-removal amendment to lower amount in controversy below federal court‘s jurisdictional limit). Under this standard, there is no question that Pfeiffer‘s action was properly removed to federal court on Hartford‘s petition.
We also reject Pfeiffer‘s implicit argument that the district court abused its discretion in dismissing the claims against Dr. Brittain and the Colorado Attorney General instead of remanding them and the remainder of the action to state court. The cases Pfeiffer cites in support of this argument arе either indirectly supportive of our ruling, see Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351, 108 S.Ct. 614, 619, 98 L.Ed.2d 720 (1988) (district court has discretion to remand action to state court rather than dismiss it when plaintiff amends complaint to eliminate federal questions that had formed basis for removal); Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir.1987) (district court has broad discretion in deciding whether to allow amendment to join a nondiverse, nonindispensable party), or readily
B. Absolute immunity of individual state attorneys
The district court granted summary judgment in favor of the individual state attorneys on the basis of prosecutorial immunity. Summary Judgment Order at 4. Pfeiffer argues that this ruling was erroneous because all or some of the conduct he complains of was either investigative or administrative in function and hence not subject to absolute immunity from
It is well established that prosecutors are absolutely immune from suit under
Consistent with these general principles, the courts have long drawn a distinction between a prosecutor‘s actions in connection with the judicial process, which are protected by prosecutorial immunity, and those that are primarily investigative or administrative in nature and hence are not so proteсted from suit. See Imbler, 424 U.S. at 430-31, 96 S.Ct. at 994-95; Harlow v. Fitzgerald, 457 U.S. 800, 811 n. 16, 102 S.Ct. 2727, 2734 n. 16, 73 L.Ed.2d 396 (1982); Snell, 920 F.2d at 686, 693; Rex v. Teeples, 753 F.2d 840, 843 (10th Cir.), cert. denied, 474 U.S. 967, 106 S.Ct. 332, 88 L.Ed.2d 316 (1985). In so doing, however, we and other courts have recognized that absolute immunity may attach even to such administrative or investigative activities “when these functions are necessary so that a prosecutor may fulfill his function as an officer of the court.”6 Snell, 920 F.2d at 693; see Gobel v. Maricopa County, 867 F.2d 1201, 1204 (9th Cir.1989) (actions taken as part of prosecutor‘s preparation of case are absolutely immune even if such actions could be characterized as investigative or administrative); see Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33. In making the difficult distinction between these prosecutorial and nonprosecutorial investigative and administrative activities, “the determinative factor is Advocacy’ because that is the prosecutor‘s main function and the one most akin to his quasi-judicial role.” Rex, 753 F.2d at 843. Thus, the more distant a function is from the judicial process and the initiation and presentation of the state‘s case, the less likely it is that absolute immunity will attach. See Snell, 920 F.2d at 687.
In this case, Pfeiffer alleges that the individual state attorneys violated his civil rights by (1) failing to investigate the charges against him “in a reasonable fashion;” (2) filing and prosecuting charges that they knew or should have known were false; (3) attempting “to coerce Plaintiff into giving up his practice of medicine” in return for keeping the Board proceedings confidential and not filing sexual assault charges against him; and (4) permitting newspaper reporters to access files on the Pfeiffer matter аnd otherwise “giving wrongful publicity” about the complaints before the Board. Rec.Vol. I, Doc. 61, ¶¶ 25-28, 39, 41, 57, 60-61, 80-81. On appeal, Pfeiffer does not challenge the individual state attorneys’ immunity from
It is undisputed that the first activity complained of by Pfeiffer, the individual state attorneys’ investigation of the charges against him, occurred after the Board had directed the Attorney General‘s office to prepare a formal disciplinary complaint based on the Memorial Hospital and alleged sexual misconduct incidents. There is no question in this circuit that prosecutors are absolutely immune from liability for allegedly failing to conduct an adequate, independent investigation of matters referred to them for prosecution. See Martinez v. Winner, 771 F.2d 424, 437 (10th Cir.1985). There is also no evidence in the record on summary judgment suggesting that the individual state attorneys’ participation in any investigation of these incidents was unnecessary to their preparation of the case against Pfeiffer.8 Thus, we find no error in the district court‘s determination that any alleged misconduct committed by the individual state defendants in their investigation of the Memorial Hospital and sexual relations incidents is absolutely immune from suit.
Plaintiff argues that a different result is required with respect to attorney Sayvetz‘s investigation of the Penrose Hospital incident because she embarked on this investigation before the Board formally referred this charge to the Attorney General‘s office. As a result, Pfeiffer claims, Sayvetz was acting outside of her authority and cannot claim absolute immunity for this activity.
The record, viewed most favorably to Pfeiffer, indicates that Sayvetz first contacted a Penrose Hospital official regarding the incident on December 10, 1980. In this telephone conversation, Sayvetz apparently sought confirmation of information she had received from another, unnamed source regarding Penrose‘s disciplinary action against Pfeiffer. She also informed the official of the hospital‘s duty to rеport the incident to the Board and informed him that the incident would be taken to the Board‘s inquiry panel on the following day. Rec.Vol. I, Doc. 161, Ex. 7. The December 11, 1980 minutes of the inquiry panel indicate that it did consider the incident that day and that it directed Karen Schicker, a Board investigator, to initiate a formal investigation of the incident on the Board‘s behalf. Id., Ex. 6. Sayvetz notified Penrose of the Board‘s intended investigation in a December 15, 1980 letter, written on behalf of the Board, that confirmed her earlier telephone call to the hospital regarding its statutory reporting obligations. There is no other evidence that Sayvetz or any of the other individual state attorneys investigated the Penrose incident before its formal referral to the Attorney General‘s office on March 12, 1981.
Even if we assume arguendo that Pfeiffer is correct in asserting that Sayvetz acted beyond her statutory authority when she telephoned Penrose concerning an incident that was not included in the January 1980 referral to her office, we cannot agree that this single unauthorized act places her conduct outside the bounds of prosecutorial immunity. “While a prosecutor might lose absolute immunity when he acts with a complete and clear absence of authority, such a condition does not occur when a prosecutor has an arguable basis of authority grounded in a statute.” Snell, 920 F.2d at 694. Here,
In Snell, we also recognized that assembling factual data did not deprive an agency lawyer of absolute prosecutorial immunity. 920 F.2d at 693-94. In that case, however, the agency lawyer was denied absolute prosecutorial immunity because she knowingly bypassed the district attorney‘s office to avoid prosecutorial discretion. See
Plaintiff also alleges in his brief that Sayvetz‘s investigation of the Penrose incident is but one example of the individual state attorneys’ continual, police-like investigation into his practice in an unauthorized attempt to develop additional charges against him. Again, however, upon defendants’ motion for summary judgment, Pfeiffer failed to produce any evidence, other than that discussed above, which even suggests that these defendants investigated incidents that had not been formally referred to the Attorney General‘s office. Although Pfeiffer blames this lack of evidence on protective orders that reportedly denied him access to the individual state attorneys or their files, there is no indication in the record that Pfeiffer was precluded from procuring evidence of this allegedly over-broad investigation from co-workers and others that must have had knowledge of it. Accordingly, Pfeiffer did not meet his burden of coming forward with specific evidence demonstrating a triable issue of fact on this issue, see Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53, and his challenge to the district court‘s summary judgment on this basis is therefore unavailing.
Pfeiffer next claims that the individual state attorneys improperly tried to force him to give up his medical practice, first in return for keeping the Board proceedings confidential and then by threatening to file sexual assault charges against him. Pfeiffer further contends that both of these offers were administrative actions not subject to absolute immunity. We cannot agree. Even if we assume that the individual state attorneys, rather than the Board, were resрonsible for these proposals, we concur with the district court that these offers were akin to plea bargaining, an activity that is absolutely immune from liability due to its intimate association with the judicial process. See Hammond v. Bales, 843 F.2d 1320, 1321-22 (10th Cir.1988); Taylor v. Kavanagh, 640 F.2d 450, 453 (2d Cir.1981). Accordingly, we hold that the individual state defendants are absolutely immune from suit regarding these offers.
3. Wrongful publication of disciplinary proceedings
Pfeiffer also alleges that the individual state attorneys violated his civil rights by: allowing the press to access files regarding his case sometime in May 1982; later providing the press with discovery materials, including the deposition of one of his complaining patients; and warning his patients and co-workers that Pfeiffer was going to lose his medical license as a result of the disciplinary proceedings. Rec.Vоl. I, Doc. 61, ¶¶ 28, 39. Pfeiffer argues that at least the first two of these incidents of “wrongful publicity” were not related to the individual state attorneys’ quasi-judicial function and hence are not protected from
In making this argument, Pfeiffer correctly reports that “a prosecutor‘s statements to the press have been consistently considered as a part of the prosecutor‘s administrative function, only entitling the prosecutor to qualified immunity.” England v. Hendricks, 880 F.2d 281, 285 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1130, 107 L.Ed.2d 1036 (1990). The case law supporting this rule, however, concerns prosecutors’ disclosure of confidential information presented in grand jury proceedings, see Rose v. Bartle, 871 F.2d 331, 346 (3d Cir.1989); Powers v. Coe, 728 F.2d 97, 100, 103 (2d Cir.1984), or statements made by prosecutors during or based on their involvement in nonprosecutorial investigative activities. See Gobel, 867 F.2d at 1205 (statements made by prosecutor during televised sting operation); Marrero v. City of Hialeah, 625 F.2d 499, 506 (5th Cir.1980) (prosecutor‘s statements were essentially those “of an investigative officer informing the press of activities occurring at the scene of the crime“), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Hampton v. Hanrahan, 600 F.2d 600, 633 (7th Cir.1979) (prosecutor made statements commenting on alleged crime and plaintiffs’ role in it immediately after crime occurred and before judicial proceedings began), rev‘d on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). This case is quite different from both of these scenarios. Here, the information allegedly released by the individual state defendants was collected and prepared in the course of prosecutorial activities immune from suit under
C. Statute of limitations defense
Because we have affirmed the district court‘s judgment against all but a portion of Pfeiffer‘s
The initial and most difficult question concerning this issue is identification of the applicable statute of limitations. Pfeiffer filed his
A different result, however, is obtained if one applies the statute of limitations in effect during the October 1980 to January 1984 period in which Pfeiffer‘s wrongful publicity claim must have accrued. Under this pre-Garcia rule, the proper statute of limitations to apply to this
The choice between these two different statutes of limitations, and the different results obtained under each, is governed by the Supreme Court‘s decision in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). See Goodman v. Lukens Steel Co., 482 U.S. 656, 662-64, 107 S.Ct. 2617, 2621-22, 96 L.Ed.2d 572 (1987) (applying Chevron analysis to determine the retroactive application of statutes of limitations adopted under Wilson v. Garcia ); St. Francis College v. Al-Khazraji, 481 U.S. 604, 609, 107 S.Ct. 2022, 2026, 95 L.Ed.2d 582 (1987) (same). In Chevron, the Court set forth three factors to be considered in determining whether a current judicial rule should be given retroactive effect or whether the previously existing rule should govern. These three factors are: (1) whether the more recent rule or decision establishes “a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed;” (2) whether, given the history, purpose and effect of the new rule, retroactive application of this rule will further or retard its operation; and (3) whether retroactive application of the new rule “could produce substantial inequitable results.” Chevron, 404 U.S. at 106-07, 92 S.Ct. at 355 (citations omitted). These factors are generally considered on a case-by-case basis to determine whether a new rule of law should be applied retroactively. Derstein v. Van Buren, 828 F.2d 653, 655 (10th Cir.1987); Thomas v. Shipka, 829 F.2d 570, 572 (6th Cir.1987).
This court has previously utilized the Chevron analysis to hold that the rule of Garcia should not be applied retroactively to bar a
In its consideration of Garcia and the statute of limitations issue, the district сourt did not address this potential inequity to the individual state attorney defendants or any other aspect of the Chevron test as it might apply specifically to Pfeiffer‘s wrongful publicity claim. It also does not appear that the parties addressed this individual component of Pfeiffer‘s broader
The judgment of the United States District Court for the District of Colorado is therefore AFFIRMED in part and REVERSED and REMANDED in part for additional proceedings consistent with this opinion.