The opinion of the court was delivered by: THOMPSON
This civil rights action comes before the Court upon defendant Don Fitch's motion for summary judgment pursuant to Fed.R.Civ.P. 56.
On June 13, 1979, plaintiff Donna Brooks instituted suit under 42 U.S.C. §§ 1983, 1985 against four named defendants-Don Fitch, as County and Prosecuting Attorney for the County of Dakota, State of Nebraska; Don Fitch in his individual capacity; County of Dakota, State of Nebraska; and the State of Nebraska.
The complaint alleged that defendants subjected plaintiff to unwarranted and malicious prosecution. Following a letter opinion of June 24, 1980, this Court, by order dated September 18, 1980, granted summary judgment for Don Fitch in his official capacity, as well as for the County of Dakota concerning the § 1983 claim. The United States Court of Appeals for the Third Circuit dismissed plaintiff's appeal on February 23, 1981 on jurisdictional grounds. 642 F.2d 48.
In her amended complaint dated February 23, 1981, plaintiff alleged the following: Brooks worked as a legal secretary in the private law office of Fitch. Fitch was also serving as County and Prosecuting Attorney for the County of Dakota, Nebraska. Plaintiff purchased a car in December 1977. Fitch co-signed a note for plaintiff's car loan. In February 1978, plaintiff moved to New Jersey and took the car with her. In September 1978, Fitch, in his capacity as County Attorney, signed a complaint against plaintiff for violating Nebraska Statute 69-110 by removing personal property with a security interest from the county. The property at issue was the automobile plaintiff had purchased. A county judge issued a warrant for plaintiff's arrest. New Jersey police arrested plaintiff on or about September 30, 1978.
Fitch, in his capacity as County and Prosecuting Attorney, initiated extradition proceedings against plaintiff on October 4, 1978. That same day, Fitch, again in his capacity as County Attorney, signed an affidavit in support of the extradition application. In that affidavit, Fitch stated that the application for requisition was not made for the purpose of collecting a debt, for the enforcement of any civil process, or to answer any private purpose. New Jersey did not extradite plaintiff.
On December 1, 1978, Fitch, in his capacity as County and Prosecuting Attorney, filed a complaint and information alleging that plaintiff embezzled $ 3,700.00 from Fitch in his individual capacity. Extradition was again attempted and was again unsuccessful.
Plaintiff alleges that Fitch's affidavits in support of the requisitions were false, arbitrary and capricious and that Fitch had made false statements in filing the complaint alleging embezzlement. Plaintiff alleges that: (1) Fitch's actions as County and Prosecuting Attorney deprived her of liberty without due process; (2) Fitch, as County and Prosecuting Attorney and Fitch in his individual capacity conspired to deprive plaintiff of her liberty; and (3) Fitch in his official capacity and Fitch in his individual capacity acted in concert pursuant to a conspiracy to deprive plaintiff of equal protection of the laws, of equal privileges and immunities under the laws, and of her liberty.
I. The § 1983 Claim Against Fitch In His Individual Capacity
Prosecutors enjoy absolute immunity from damage suits under both § 1983 and § 1985 for activities "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430, 96 S. Ct. 984, 994, 47 L. Ed. 2d 128 (1976). Such immunity, however, is not without limit. It does not apply to actions taken by prosecutors "clearly outside of their jurisdiction." Bauers v. Heisel, 361 F.2d 581, 590 (3d Cir. 1966) (en banc), cert. denied, 386 U.S. 1021, 87 S. Ct. 1367, 18 L. Ed. 2d 457 (1967). Within these limits, it is well established that this immunity extends to actions taken in the initiation of a prosecution and the presentation of the State's case. Imbler, supra, 424 U.S. at 431, 96 S. Ct. at 995; Ross v. Meagan, 638 F.2d 646, 648 (3d Cir. 1981) (per curiam). This Court's determination of whether or not Fitch's actions fall within the initiation and presentation of the State's case is a difficult one and should not be made mechanically. Mancini v. Lester, 630 F.2d 990, 992 (3d Cir. 1980) (per curiam). Rather, the Court will look in part to the functional nature of the prosecutorial conduct. See Imbler, supra, 424 U.S. at 430-31, 96 S. Ct. at 994-95.
Fitch's drawing of the complaints for plaintiff's arrest clearly falls within the ambit of the initiation of a prosecution. The events surrounding the requisitions for plaintiff's extradition from New Jersey, however, present a more difficult determination. This Court is convinced, nonetheless, that these actions also fall within the scope of the initiation and pursuit of a criminal prosecution.
The conduct in question appears to be related to Fitch's role as an advocate, the initiation and undertaking of a criminal prosecution. See Brawer v. Horowitz, 535 F.2d 830, 834 (3d Cir. 1976) citing Imbler, supra, 424 U.S. at 431 n.33, 96 S. Ct. at 995 n.33. The decision to undertake a criminal prosecution and the actual initiation of the prosecution are part and parcel of the same role. One cannot initiate a prosecution in a vacuum. Forsyth v. Kleindienst, 599 F.2d 1203, 1215 (3d Cir. 1979). In order to prosecute a suit, the prosecuting attorney must compel the attendance of a criminal defendant. The duty of the prosecutor is to bring to trial those individuals whom he reasonably believes are guilty of the crimes for which they are charged. "So long as he acts within the scope of this duty, he is immune from civil liability." McDonald v. State of Illinois, 557 F.2d 596, 602 (7th Cir. 1977), cert. denied, DeMaro v. U.S., 434 U.S. 872, 98 S. Ct. 217, 54 L. Ed. 2d 151 citing Cawley v. Warren, 216 F.2d 74 (7th Cir. 1954). The decision to prosecute had already been made. That decision should normally be clothed with absolute immunity.
To grant a prosecutor absolute immunity concerning his decision to initiate a prosecution while subjecting him to liability for securing the presence of the defendant would run contrary to the policy underlying Imbler and prosecutorial immunity in general. See Forsyth, supra, at 1215. In Imbler the Court granted absolute immunity to a prosecutor in a suit alleging that the prosecutor knowingly used perjured testimony. The Court noted that potential liability would divert the prosecutor's attention from his duties and would inhibit the proper functioning of the criminal justice system. Imbler, supra, 424 U.S. at 425-28, 96 S. Ct. at 992-94. The Court also recognized that "the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom." Id. at 431 n.33, 96 S. Ct. at 995 n.33. Similarly, the decisions to extradite and to issue an arrest warrant fall within the scope of absolute immunity. The filing of the affidavit in connection with the requisition is similarly integral to the initiation and pursuit of the criminal prosecution.
Except for the peculiarly personal interest of Fitch in the actions taken, courts have decided cases involving otherwise analogous circumstances, and have held the prosecuting attorney absolutely immune from damage suits. See e.g., Macko v. Bryon, 641 F.2d 447, 449 (6th Cir. 1981) (per curiam) (malicious indictments); Norton v. Liddel, 620 F.2d 1375, 1379 (10th Cir. 1980) (information signed by district attorney in malicious prosecution case); Lee v. Willins, 617 F.2d 320, 322 (2d Cir. 1980), cert. denied, 449 U.S. 861, 101 S. Ct. 165, 66 L. Ed. 2d 78 (falsification of evidence and coercion of perjured testimony); Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir. 1979) (filing baseless detainer, filing an information without investigation, offering perjured testimony, suppressing exculpatory evidence); Daniels v. Kieser, 586 F.2d 64, 68 (7th Cir. 1978), cert. denied, 441 U.S. 931, 99 S. Ct. 2050, 60 L. Ed. 2d 659 (1979) (swearing of warrants to insure the presence of a witness at trial).
Plaintiff cites Helstoski v. Goldstein, 552 F.2d 564 (3d Cir. 1977) (per curiam) and Coggins v. Carpenter, 468 F. Supp. 270 (E.D.Pa.1979) for support for her contention that absolute immunity does not apply to the case at bar. While neither case is directly on point, an analysis of these two cases will serve as the starting point for the Court's discussion of why it will not grant ...