finding the defendant absolutely immune when his “duties as a peer reviewer were analogous to those of a prosecutor reviewing the evidence to determine whether to recommend prosecution.”
How later courts described this case
- finding the defendant absolutely immune when his “duties as a peer reviewer were analogous to those of a prosecutor reviewing the evidence to determine whether to recommend prosecution.”
- concluding that de novo review was still required under these decisions where a pro se litigant had objected to specific factual findings in the M&R
- “We also believe that agency officials performing certain functions analogous to those of a prosecutor should be able to claim absolute immunity with respect to such acts.”
Written by the judges who cited it.
The opinion
_ IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
Case No. 7:21-CV-00115-M
CHRISTOPHER W. LIVINGSTON,
Plaintiff,
Vv. ORDER
THE NORTH CAROLINA STATE BAR,
SUSANNAH B. COX, and KATHERINE E.
JEAN,
Defendants.
This matter comes before the court on the Defendants’ Motion to Dismiss Amended
Complaint [DE 18]. Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b),
the Honorable Kimberly A. Swank, United States Magistrate Judge, issued a Memorandum and
Recommendation (“M&R”), recommending that this court grant Defendant’s motion and dismiss
Plaintiff's federal claims in their entirety and decline to exercise supplemental jurisdiction over
Plaintiff's remaining state-law claims. DE 23. Plaintiff filed two objections to the M&R and
Defendants responded to those objections. DE 24, 26. Having reviewed the entire record, the
court accepts Judge Swank’s recommendation and overrules Plaintiffs objections.
I. Standard of Review
A magistrate judge’s recommendation carries no presumptive weight. The court “may
accept, reject, or modify, in whole or in part, the... recommendation[ ]... receive further evidence
or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1); accord
Mathews v. Weber, 423 U.S. 261, 271 (1976). The court “shall make a de novo determination of
those portions of the report or specified proposed findings or recommendations to which objection
is made.” Jd. § 636(b)(1). Absent specific and timely objection, the court reviews only for “clear
error” and need not give any explanation for adopting the recommendation. Diamond v. Colonial
. Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). Upon careful review of the record,
“the court may accept, rej ect, or modify, in whole or in part, the findings or recommendations.
made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
Under § 636(b)(1), a party’s objections to an M&R must be “specific and particularized”
to facilitate district court review. United States v. Midgette, 478 F.3d 616, 621 (4th Cir. 2007).
On the other hand, “general and conclusory objections that do not direct the court to a specific
error” in the M&R fall short of this standard. See Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
1982) (concluding that de novo review was still required under these decisions where a pro se
litigant had objected to specific factual findings in the M&R).
Il. Analysis
Judge Swank made three principal recommendations. First, Plaintiff's federal law claims
against all Defendants are barred by the Eleventh Amendment. DE 23 at 9-10. Second, Plaintiffs
federal law claims against Defendants Katherine Jean and Susannah Cox, state bar officials, in
their personal capacities must be dismissed because Jean and Cox have absolute prosecutorial
_ immunity. Jd. at 10-1 1. Third, Plaintiff's state-law claims should be dismissed because there are
no federal-law claims remaining to which the state-law claims may attach. Jd. at 12.
The Plaintiff raises two objections to the M&R. First, in response to a footnote in the
M&R, the Plaintiff asserts that National Surety Co. v. Page, 58 F.2d 145, 148 (4th Cir. 1932), is
binding precedent from the Fourth Circuit, DE 24 at 1. Even assuming the objection is true, it has
no bearing on the M&R’s recommendations.
Second, Plaintiff objects to the M&R’s recommendation that Cox and Jean are entitled to
absolute prosecutorial immunity. Plaintiff argues they were not functioning as prosecutors but
instead “were functioning as investigators prior to a determination of probable cause.” DE 24 at
1. Judge Swank recommended the court find Jean and Cox protected by absolute prosecutorial
immunity because they were performing activities analogous to criminal law prosecutors in
determining whether to recommend prosecution. See, e.g., Butz v. Economou, 438 U.S. 478, 515
(1978) (“We also believe that agency officials performing certain functions analogous to those of
a prosecutor should be able to claim absolute immunity with respect to such acts.”).
The court agrees with Judge Swank’s recommendation and overrules the Plaintiffs
objection. “[P]rosecutorial immunity extends to state bar officials performing a role.”
See Myers v. North Carolina, No. 5:12-CV-714-D, 2013 WL 4456848, at *4 (E.D.N.C. Aug. 16,
2013), aff'd sub nom. Myers v. Bizzell, 673 F. App’x 310 (4th Cir. 2016). The crux of Plaintiff's
claims against Jean and Cox hinge on allegations that they sent a letter of notice to the Plaintiff
based on a frivolous grievance when they should have “determined without Plaintiff's input that
no probable cause existed and dismissed. the matter with no more than a courtesy notice to
Plaintiff.” Compl. { 76. Jean and Cox investigation of a grievance to determine whether to pursue
disciplinary action places them in a role analogous to prosecutors. See Ostrzenski v. Seigel, 177
F.3d 245, 250 (4th Cir. 1999) (finding the defendant absolutely immune when his “duties as a peer
reviewer were analogous to those of a prosecutor reviewing the evidence to determine whether to
recommend prosecution.”). Plaintiffs objection relies extensively on Goldstein v. Moatz, 364
F.3d 205 (2004); however, this court agrees with Judge Swank’s distinction between this case and
Goldstein. In Goldstein, the Fourth Circuit held that patent-office officials were not entitled to
absolute prosecutorial immunity because “unlike the peer reviewer in Ostrzenshi,” they “have
neither the statutory nor regulatory authority to recommend disciplinary action; they merely
investigate.” Id. at217. Jean and Cox are granted the power and duty to recommend disciplinary
action. See 27 N.C. Admin. Code 1B.0107(3),(4),(5); see also Pak v. Ridgell, No. 1:10-CV-1421-
RDB, 2011 WL 3320197, at *6—7, n.9 (D. Md. Aug. 1, 2011) (explaining the distinction between
Goldstein and Ostrzenski that absolute prosecutorial immunity did not attach to Patent and
Trademark officials because they “had no power to recommend prosecution and did not serve as
advocates in anyway.”). Jean and Cox do more than “merely investigate.” In the actions that gave
rise to the present suit, Jean and Cox were eeienane to determine whether to recommend
disciplinary action. As in Ostrzenski, the officers “enjoy ] absolute immunity for the intertwined
activities of making [their] recommendation to the Board and conducting the investigation to
support [their] recommendation.” Goldstein, 364 F.3d at 217. In addition, the court notes that the
Plaintiff charges the Defendants with malicious prosecution while simultaneously arguing they are
not acting as prosecutors.
Accordingly, Goldstein does not apply. Jean and Cox are entitled to absolute immunity.
The court adopts Judge Swank’s M&R and overrules Plaintiff's second objection.
Ii. Conclusion
The court ACCEPTS the Memorandum and Recommendation [DE 23] in full and
GRANTS Defendant’s Motion to Dismiss [DE 18]. Plaintiffs federal claims are dismissed in
their entirety and the court declines to exercise supplemental jurisdiction over Plaintiffs remaining
state-law claims.
SO ORDERED this (3-day of March, 2023.
J! SAV evs LD
RICHARD E. MYERS II
CHIEF UNITED STATES DISTRICT JUDGE