Steven Barnett v. Joshua Marquis
662 F. App'x 537
9th Cir.
2016
Check Treatment
Docket

Steven M. BARNETT, Plaintiff-Appellant, v. Joshua K. MARQUIS, District Attorney of Clatsop County, Oregon; et al., Defendants-Appellees.

No. 14-35329

United States Court of Appeals, Ninth Circuit.

FILED November 3, 2016

Submitted October 6, 2016 *, Portland, Oregon

668 Fed. Appx. 537

ITT‘s tolling would mean the statute ran for 366 days-that is, one day more than the one-year time bar. To assess this claim, we must briefly wade through the procedural morass to discern which events made the statute run and toll.

The statute was tolled for all members of the putative class until the district court provisionally denied certification on June 24, 2011, and ITT implicitly conceded at oral argument that the statute resumed tolling when the district court first granted certification on February 10, 2012. That period spans 231 days.

ITT then argues that the statute began to run anew on July 24, 2013, as soon as the Ninth Circuit issued its memorandum disposition vacating the certification order, even though the mandate in that appeal did not issue until August 19, 2013, and the district court did not lift its stay until August 27, 2013. Regardless of which of those dates provides the right benchmark, ITT implicitly conceded that the statute tolled once again when the district court granted the third motion for class certification on December 6, 2013. But that benchmark is important-ITT‘s calculation of 366 days is correct only if the statute began running anew upon issuance of the memorandum disposition.

We conclude that the statute resumed running no earlier than when the mandate issued. Up until that point, the vacatur was not final and the parties’ obligations were not fixed. See Fed. R. App. P. 41 advisory committee‘s note to 1998 amendment (“A court of appeals’ judgment or order is not final until issuance of the mandate; at that time the parties’ obligations become fixed.“); cf. (finding that the clock begins to run on “the date of the Ninth Circuit mandate,” not “the date of the filing of the Ninth Circuit decision,” when calculating timeliness under § 3161(e) of the Speedy Trial Act). Thus, at most the statute resumed running upon the mandate‘s issuance on August 19, 2013, and tolled again upon the second grant of certification on December 6, 2013. That period spans 109 days.

In all, then, the statute ran for no more than 340 days following the initial denial of class certification in June 2011.1 Because Kuwaiti law gives an employee one year to bring suit, the class claims were not untimely when the district court issued its certification order in December 2013.

AFFIRMED.

Sean J. Riddell, Attorney, Law Office of Sean J. Riddell, Portland, OR, for Plaintiff-Appellant

Peenesh Shah, AGOR-Office of the Oregon Attorney General, Salem, OR, for Defendants-Appellees

Before: THOMAS, Chief Judge, and CLIFTON and NGUYEN, Circuit Judges.

MEMORANDUM ****

Steven M. Barnett appeals the district court‘s dismissal of his 42 U.S.C. § 1983 action alleging violations of his First and Fourteenth Amendment rights. We have jurisdiction under 28 U.S.C. § 1291. We review de novo both a district court‘s order granting a motion to dismiss pursuant to Rule 12(b)(6), , and a district court‘s ruling on absolute immunity, . We affirm. Because the parties are familiar with the facts and the procedural history, we will not recount them here.

I

The district court properly held that prosecutors Marquis and Brown are entitled to absolute immunity as to the decision to stop using Barnett as a witness. Prosecutors are absolutely immune from suit under § 1983 for prosecutorial conduct, which is “intimately associated with the judicial phase of the criminal process.” . Determining whether conduct is prosecutorial is an “inexact science.” . Therefore, we take a “functional approach” to this question, , considering the “nature of the function performed, not the identity of the actor who performed it,” . Using this approach, the Supreme Court has held that prosecutorial conduct includes “initiating a prosecution and ... presenting the State‘s case.” . As a result, actions taken outside the courtroom and preliminary to trial can be protected by absolute immunity. . Moreover, a prosecutor‘s conduct need not be related to a particular trial to be protected. .

A prosecutor‘s decisions about witness credibility and the presentation of evidence are intimately associated with the judicial phase of prosecution and are therefore protected by absolute immunity. . For the purpose of determining absolute immunity, the accuracy of a prosecutor‘s witness credibility assessment is “immaterial,” “even if that judgment is harsh, unfair or clouded by personal animus.” Furthermore, prosecutors can refuse to use a potential witness regardless of whether the testimony could be corroborated by other witnesses or physical evidence. .

The decision by the Clatsop County District Attorney‘s Office to cease using Barnett as a witness falls squarely within the type of prosecutorial conduct that is protected by absolute immunity. Whether that decision was made directly in response to Barnett‘s article criticizing Marquis is immaterial.

Barnett‘s argument that Marquis was improperly “vouching for a witness” when he stated that the Clatsop County District Attorney‘s Office “cannot vouch for [Barnett‘s] credibility” is not persuasive. The rule prohibiting prosecutors from vouching for a witness‘s veracity applies narrowly to a prosecutor‘s presentation before a jury. See (“[A] jury ‘may be inclined to give weight to the prosecutor‘s opinion in assessing the credibility of witnesses, instead of making the independent judgment of credibility to which the defendant is entitled.‘” (quoting )); . It is thus inapplicable here.

II

The district court properly concluded that Brown‘s decision not to work with Barnett on any ongoing investigations was prosecutorial conduct protected by absolute immunity. A prosecutor‘s decision not to prosecute is entitled to absolute immunity, even if that decision involves refusing to prosecute all cases in which a particular officer is involved. ; . Absolute immunity applies to such a decision regardless of whether the prosecutors “fail[] to offer an explanation for their nonprosecution policy and their refusal to prosecute [an officer‘s] cases under any circumstances.” .

Brown‘s decision not to work with Barnett on any ongoing investigations is similar to a decision not to prosecute a particular officer‘s cases, and it has essentially the same effect. Therefore, Brown‘s decision not to work with Barnett is prosecutorial conduct protected by absolute immunity.

Barnett argues that Marquis and Brown are not entitled to prosecutorial immunity because they “are making prosecutorial decisions conditional on [his] political silence” and in retaliation for his article. Thus, he argues, Marquis and Brown have improperly “intertwine[d] an otherwise illegal act that is plainly beyond [their] jurisdiction with a traditional prosecutorial function.” The Second Circuit cases that Barnett cites in support of his argument are distinguishable from and inapplicable to this case. Both cases involved a prosecutor conditioning the decision to prosecute on some action by the individual to be prosecuted. Neither involved a prosecutor‘s refusal to work with a particular officer. See (denying prosecutor absolute immunity for conditioning her decision not to prosecute upon the plaintiff swearing to her innocence on a Bible in a church before a priest); (granting prosecutors absolute immunity for conditioning the decision not to prosecute upon the plaintiff‘s signing liability releases).

III

The district court correctly held that Marquis and Brown are entitled to absolute immunity for communicating their decisions regarding Barnett to the Seaside Police Department. We held in that a prosecutor‘s communication of a decision not to prosecute a particular police officer‘s cases is protected by absolute immunity. . In light of , Marquis and Brown are entitled to absolute immunity for communicating to the Seaside Police Department their decisions not to use Barnett as a witness or work with him on any ongoing investigations.

Barnett argues that Marquis‘s and Brown‘s communications are administrative employment decisions that deserve only qualified immunity. However, Barnett does not allege that Marquis and Brown attempted to dictate to the Seaside Police Department how to conduct future investigations. See . Therefore, Marquis‘s and Brown‘s communications are protected by absolute immunity.

AFFIRMED.

Notes

1
We need not decide whether it was the filing or the granting of the renewed motions for class certification that triggered tolling to resume. Nor need we decide definitively whether the statute began to run anew upon our issuance of the mandate or the district court‘s lifting of its stay.
*
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
**
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Read the detailed case summary