Botello v. Gammick

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RENE BOTELLO,  No. 03-16618

Plaintiff-Appellant,

D.C. No.

v.

 CV-03-00195-RLH/

RICHARD GAMMICK; JOHN HELZER; VPC

WASHOE COUNTY,

OPINION

Defendants-Appellees.



Appeal from the United States District Court

for the District of Nevada

Roger L. Hunt, District Judge, Presiding

Argued and Submitted

March 16, 2005—Berkeley, California

Filed June 23, 2005

Before: John T. Noonan, Jr., Sidney R. Thomas and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher

7515

7518 BOTELLO v. GAMMICK

COUNSEL

Diane K. Vaillancourt, Santa Cruz, California, and Terri

Keyser-Cooper, Reno, Nevada, for the plaintiff-appellant.

Gregory R. Shannon and Richard A. Gammick, Reno,

Nevada, for the defendants-appellees.

OPINION

FISHER, Circuit Judge:

Appellant Rene Botello alleges that after he brought to light

abuses in the Washoe County District Attorney’s sexual

assault response program, Washoe County District Attorney

Richard Gammick and Deputy District Attorney John Helzer

(the “prosecutors”) retaliated against him for his protected

First Amendment activity, in violation of 42 U.S.C. § 1983,

defamed him and subjected him to intentional infliction of

emotional distress. Botello brought suit in the district court

against Gammick, Helzer and Washoe County (“County”).

The district court dismissed Botello’s first amended complaint

on the basis of absolute prosecutorial immunity, and this

appeal followed. Because certain of the prosecutors’ acts were

not within the scope of their prosecutorial functions and were

not closely associated with the judicial process, they were not

shielded by absolute immunity. In addition, the County was

not entitled to absolute immunity. Accordingly, we affirm in

part, reverse in part and remand.

I. Background

We take the following facts from Botello’s first amendment

complaint.1 In December 2001, Botello was employed by the

1

Because the district court granted a Rule 12(b)(6) dismissal, we accept

the facts as alleged by Botello.

BOTELLO v. GAMMICK 7519

Washoe County Sheriff’s Office (“WCSO”) as a child sexual

assault investigator. Botello was one of the few Spanish-

speaking investigators in the County and was frequently cal-

led upon by fellow workers and outside police departments to

assist in investigating cases involving Spanish-speaking vic-

tims, suspects and witnesses. In the course of his duties, he

learned that Nurse Lily Clarkson, who regularly testified as a

medical expert in child sexual assault cases, was “indisputa-

bly wrong” in her medical finding that a certain female child

had been sexually penetrated, had no hymen and was the clear

victim of sexual abuse.2 In addition, Botello learned that

Clarkson was equally mistaken in her separate conclusion that

the child’s sister was similarly injured.

In separate follow-up examinations of the sisters, three

pediatricians at three different medical facilities found that

there was no physical evidence to support Clarkson’s findings

that the children had been sexually assaulted. The doctors

who performed these follow-up examinations informed

Botello that Clarkson’s medical findings were in “gross

error.” Given Botello’s awareness that suspects were routinely

arrested based on Clarkson’s findings and convicted as a

result of her testimony, his discovery that her findings were

in “gross error” deeply disturbed him.

Botello reluctantly concluded that it would be wrong for

him to remain silent and that he needed to bring evidence of

Clarkson’s wrongful medical findings to the appropriate offi-

cials. He brought his discovery to the attention of his superi-

ors, including County prosecutors Gammick and Helzer, who

regularly utilized Clarkson’s testimony in procuring sexual

assault convictions. Botello also requested an audit of the

CARES program to ensure the integrity of County sexual

assault investigations and prosecutions.

2

Clarkson was one of two nurses employed by the Child Abuse

Response and Evaluation program (“CARES”), a state program adminis-

tered by the Washoe County District Attorney’s Office (“DA’s Office”).

7520 BOTELLO v. GAMMICK

In response to Botello’s disclosures, the prosecutors

became angry, accused Botello of not being a “team player”

and warned him to keep his mouth shut about Clarkson’s tes-

timony. Gammick and Helzer threatened to retaliate against

Botello should he continue to advocate for oversight of the

CARES program. Alarmed by their unexpected response,

Botello reported his concerns about the CARES program and

his further concerns about a possible cover-up and retaliation

by the DA’s Office to the Nevada Attorney General’s Office

and the Federal Bureau of Investigation. Concurrently,

Botello resigned his position with the WCSO and applied for

employment with the Washoe County School District Police

Department (“School Police Department”).

Botello experienced immediate retaliation from Gammick

and Helzer. Unaware that Botello had already secured his new

job with the School Police Department, Gammick and Helzer

telephoned his new employer in an effort to dissuade it from

hiring Botello. During the telephone conversation, Gammick

and Helzer made false allegations about Botello’s character

and performance at his previous job at WCSO. Failing in their

efforts to prevent Botello from being hired, they attempted

through follow-up communications to have him fired.

In oral and written communications to the School Police

Department, they insisted that Botello must not be permitted

to participate in any investigations. Gammick and Helzer

emphasized that the DA’s Office would refuse to file any case

where Botello participated in any phase of the investigation,

no matter how preliminary and no matter whether other inves-

tigators were available to testify. Because of their threats,

Botello’s employer assigned him to desk duty.

On June 3, 2003, Botello filed a first amended complaint,

alleging violation of his First Amendment rights under 42

U.S.C. § 1983, and defamation and intentional infliction of

emotional distress under Nevada law. The defendants moved

to dismiss the first amended complaint on the grounds of

BOTELLO v. GAMMICK 7521

absolute immunity. The district court granted defendants’

motion to dismiss Botello’s § 1983 claim pursuant to Fed. R.

Civ. P. 12(b)(6), and dismissed Botello’s supplemental state

law claims without prejudice pursuant to 28 U.S.C. § 1367.3

II. Analysis

We have jurisdiction under 28 U.S.C. § 1291. A dismissal

under Rule 12(b)(6) for failure to state a claim is reviewed de

novo. Milstein v. Cooley, 257 F.3d 1004, 1007 (9th Cir.

2001). The factual allegations in the complaint are assumed

to be true. Id. We review a decision by a district court to

afford a public official or a municipality absolute or qualified

immunity de novo. Webb v. Sloan, 330 F.3d 1158, 1163 n.4

(9th Cir. 2003) (municipality); Herb Hallman Chevrolet v.

Nash-Holmes, 169 F.3d 636, 642 (9th Cir. 1999) (public offi-

cial).

In this case we are called upon to examine the scope of our

decision in Roe v. City & County of San Francisco, 109 F.3d

578 (9th Cir. 1997), which held that prosecutors were entitled

to absolute immunity for refusing to prosecute any cases

referred by a particular officer absent additional corroborating

evidence or testimony. The issues before us on appeal are: (1)

whether all of Gammick’s and Helzer’s conduct fell within

their decision not to prosecute Botello’s cases and whether

this fact entitles them to absolute immunity; and (2) whether

the County is entitled to absolute immunity.4 The district

3

In Botello’s opening brief he augmented the factual background of the

case by detailing what occurred after the district court dismissed his suit:

less than one month after the district court dismissed his case, Botello was

fired from his job; subsequent to his termination, the School Police

Department offered Botello a position as a truancy officer, which pays

approximately half the salary of Botello’s prior position. The defendants

have neither objected to nor disputed Botello’s additional factual asser-

tions.

4

The only issue before the district court on defendants’ motion to dis-

miss was whether the defendants were entitled to absolute immunity.

7522 BOTELLO v. GAMMICK

court found that even assuming the facts alleged in Botello’s

complaint were true — the prosecutors attempted to dissuade

the School Police Department from hiring Botello and insisted

that Botello be barred from all investigations in retaliation for

Botello’s exercise of his First Amendment rights — the prose-

cutors were entitled to absolute immunity. We disagree. In

characterizing all of the prosecutors’ alleged behavior as fall-

ing within their decision not to prosecute Botello’s cases, the

district court construed Gammick’s and Helzer’s conduct too

narrowly and read Roe too broadly.

A. Absolute Prosecutorial Immunity

[1] Prosecutors are absolutely immune from liability under

§ 1983 for their conduct insofar as it is “intimately associat-

ed” with the judicial phase of the criminal process. See Burns

v. Reed, 500 U.S. 478, 486 (1991) (quoting Imbler v. Pacht-

man, 424 U.S. 409, 430 (1976)); Miller v. Gammie, 335 F.3d

889, 897 (9th Cir. 2003) (en banc) (“[T]o enjoy absolute

immunity for a particular action, the official must be perform-

ing a duty functionally comparable to one for which officials

were rendered immune at common law.”). However, when

prosecutors perform administrative or investigative functions,

only qualified immunity is available. See Buckley v. Fitzsim-

mons, 509 U.S. 259, 271-73 (1993); Broam v. Bogan, 320

F.3d 1023, 1028 (9th Cir. 2003). That is, the actions of a pros-

ecutor are not absolutely immune merely because they are

performed by a prosecutor. Buckley, 509 U.S. at 273.

To determine whether an action is judicial, administrative

or investigative, the court looks at “the nature of the function

Because absolute immunity acts as a total bar against suit, the district

court did not consider whether Botello’s speech was protected by the First

Amendment. See, e.g., Milstein, 257 F.3d at 1007-08 (“To be sure, [abso-

lute] immunity does leave the genuinely wronged defendant without civil

redress against a prosecutor whose malicious or dishonest action deprives

him of liberty.”) (internal quotation marks and citations omitted). We

therefore confine our discussion to the nature of the defendants’ conduct

and not the nature of Botello’s speech.

BOTELLO v. GAMMICK 7523

performed, not the identity of the actor who performed it.”

Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (quoting For-

rester v. White, 484 U.S. 219, 229 (1988)). Thus, whether a

prosecutor benefits from absolute or qualified immunity

depends on which of the prosecutor’s actions are challenged.

See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). The

official seeking absolute immunity bears the burden of dem-

onstrating that absolute immunity is justified for the function

in question. Buckley, 509 U.S. at 269; Burns, 500 U.S. at 486.

The presumption is that qualified rather than absolute immu-

nity is sufficient to protect government officials in the course

of their duties. Burns, 500 U.S. at 486-87.

Although the line between the functions is not entirely

clear, it is clear that absolute prosecutorial immunity is justi-

fied “only for actions that are connected with the prosecutor’s

role in judicial proceedings, not for every litigation-inducing

conduct.” Burns, 500 U.S. at 494. On the one hand, it is well

established that a prosecutor has absolute immunity for the

decision to prosecute a particular case, see Burns, 500 U.S. at

486, and for the decision not to prosecute a particular case or

group of cases, see Roe, 109 F.3d at 583. In addition, a prose-

cutor’s professional evaluation of a witness is entitled to abso-

lute immunity “even if that judgment is harsh, unfair or

clouded by personal animus.” Id. at 584.

[2] On the other hand, it is also well established that an

official is not entitled to absolute immunity for conduct

involving termination, demotion and treatment of employees.

See Forrester, 484 U.S. at 228-30 (holding that a judge is not

entitled to absolute immunity in his capacity as an employer

and therefore may be liable for unconstitutional conduct

involving the termination, demotion and treatment of employ-

ees); Meek v. County of Riverside, 183 F.3d 962, 967 (9th Cir.

1999) (holding that a judge’s decision to fire an employee was

an administrative decision not entitled to absolute immunity).

The Supreme Court has also held that prosecutors are not enti-

tled to absolute immunity for advising police officers during

7524 BOTELLO v. GAMMICK

the investigative phase of a criminal case, see Burns, 500 U.S.

at 493, performing acts which are generally considered func-

tions of the police,5 see Buckley, 509 U.S. at 274-76, acting

prior to having probable cause to arrest, see id. at 274, or

making statements to the public concerning criminal proceed-

ings, see id. at 277-78.

B. Functional Analysis

The central issue in determining whether Gammick and

Helzer are entitled to absolute immunity is defining the partic-

ular function they were engaged in when they allegedly retali-

ated against Botello. The acts of Gammick and Helzer fit

within three separate categories of conduct: (1) their commu-

nications to the School Police Department in an effort to dis-

suade it from hiring Botello; (2) their decision not to

prosecute Botello’s cases; and (3) their communications to the

School Police Department insisting that Botello be barred

from all stages of the investigative process.

1. Telephoning the School Police Department to Dissuade

It from Hiring Botello

[3] Botello claims that before they adopted their nonpro-

secution policy, the prosecutors first retaliated against him by

telephoning the School Police Department trying to sabotage

his job prospects. Gammick and Helzer are not entitled to

absolute immunity for this conduct, which had no connection

to the judicial process. When they involved themselves in the

School Police Department’s personnel decision whether to

5

Although we focus on the administrative nature of Gammick’s and

Helzer’s conduct, by attempting to dictate the manner in which future

investigations should be staffed and conducted, the prosecutors were likely

engaging in an investigative rather than a judicial function. Buckley, 509

U.S. at 273 (“When a prosecutor performs the investigative functions nor-

mally performed by a detective or police officer, it is neither appropriate

nor justifiable that, for the same act, immunity should protect the one and

not the other.”) (internal quotation marks omitted).

BOTELLO v. GAMMICK 7525

hire Botello, they were at best performing an administrative

function and, as such, could only be entitled to qualified

immunity. See Forrester, 484 U.S. at 228-30. Their defama-

tory comments about Botello were simply an attempt to dis-

rupt an employment decision. Thus, Gammick and Helzer are

not entitled to absolute immunity for their communications

with the School Police Department regarding its hiring of

Botello.6

2. Decision not to Prosecute

[4] Having failed to thwart the School Police Department’s

hiring of Botello, Gammick and Helzer allegedly attempted to

have him fired by announcing their refusal to prosecute any

cases where Botello participated in any phase of the investiga-

tive process. The prosecutors’ failure to offer an explanation

for their nonprosecution policy and their refusal to prosecute

Botello’s cases under any circumstances, for instance even

where there might be corroborating evidence or testimony,

give us pause. Nonetheless, their decision not to prosecute

Botello’s cases and their communication of that decision is

intimately tied to the judicial process and is thus entitled to

absolute immunity. See Roe, 109 F.3d at 583; cf. Beck v. Phil-

lips, 685 N.W. 2d 637 (Iowa 2004) (holding that the prosecu-

tor was entitled to absolute immunity for his nonprosecution

policy but only qualified immunity for sending letters com-

municating the policy to city officials).

3. Barring Botello from All Stages of the Investigative

Process

[5] The prosecutors’ demands that Botello be barred from

participating in any aspect of any investigation were not inti-

mately tied to the judicial process. Rather, in insisting that

Botello be barred from any aspect of the investigative process,

6

We express no opinion as to whether the prosecutors’ actions damaged

Botello.

7526 BOTELLO v. GAMMICK

even from the earliest stages of preliminary investigations,

Gammick and Helzer were in essence dictating to local law

enforcement authorities how future criminal investigations

should be conducted and staffed — an administrative func-

tion.

[6] Although Gammick and Helzer argue that their staffing

directives fall within Roe’s protection, such a reading of Roe

would extend absolute immunity to conduct well beyond the

prosecutorial function. See Burns, 500 U.S. at 495 (“Almost

any action by a prosecutor . . . could be said to be in some

way related to the ultimate decision whether to prosecute, but

we have never indicated that absolute immunity is that expan-

sive. Rather, . . . we inquire whether the prosecutor’s actions

are closely associated with the judicial process.”). Because the

official seeking absolute immunity bears the burden of dem-

onstrating that absolute immunity is justified for the function

in question, see Buckley, 509 U.S. at 269, it was the prosecu-

tors’ burden to demonstrate that their conduct was tied to an

exercise of their prosecutorial judgment. Here, they failed to

demonstrate a connection between their unexplained, unquali-

fied blanket prohibition on Botello’s involvement in any

aspect of an investigation and the judicial process. Under

Gammick’s and Helzer’s nonprosecution policy, it made no

difference whether Botello was a potential witness, or

whether his testimony could be corroborated by other wit-

nesses or physical evidence. Cf. Roe, 109 F.3d at 584 (noting

that prosecutors would not prosecute Roe’s cases absent cor-

roborating evidence or testimony).

Instead, Gammick and Helzer sought to usurp the staffing

decisions Chief Meiras might make to use Botello in ways

that would not compromise a criminal prosecution and would

comport with the prosecutors’ nonprosecution policy. In Roe,

the police chief had a number of staffing choices in light of

the prosecutors’ qualified nonprosecution policy, including

transferring Roe as the chief did, or making sure that there

would always be an officer other than Roe who could testify

BOTELLO v. GAMMICK 7527

or corroborate Roe’s testimony. Gammick and Helzer gave

Chief Meiras no such options. We fail to see why Gammick

and Helzer should be entitled to absolute immunity when they

stepped into the shoes of Chief Meiras, who would at most be

entitled to only qualified immunity as an administrative

decision-maker. See Burns, 500 U.S. at 486-87 (explaining

that qualified rather than absolute immunity is presumed suf-

ficient to protect government officials in the course of their

duties).

[7] Just as a prosecutor may not assert that his actions are

absolutely immune merely because they are performed by a

prosecutor, see Buckley, 509 U.S. at 273, a prosecutor may

not assert blanket absolute immunity by labeling all his

actions as within a particular prosecutorial function. By sim-

ply characterizing all of their conduct as a decision not to

prosecute, Gammick and Helzer have not met their burden of

showing that absolute immunity is justified either for their

attempted interference with the School Police Department’s

hiring of Botello or for their administrative demands that

Botello be barred from participating in all stages of the inves-

tigative process. Accordingly, we reverse and remand to the

district court to determine whether Gammick and Helzer are

entitled to qualified immunity. See, e.g., Milstein, 257 F.3d at

1013 n.6.

C. County Liability

[8] After finding that Gammick and Helzer were entitled to

absolute immunity, the district court dismissed all the defen-

dants, including the County. Generally, a municipality may

not be held liable under § 1983 for the torts of its employees.

See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978);

Bd. of County Comm’rs v. Brown, 520 U.S. 397, 403 (1997).

The actions of individual employees can support liability

against their governmental employer only if the employees

were acting pursuant to an official policy, Pembaur v. City of

Cincinnati, 475 U.S. 469, 479 (1986), or committed a consti-

7528 BOTELLO v. GAMMICK

tutional violation “pursuant to a longstanding practice or cus-

tom . . . .” Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir.

2003). However, liability may also attach “even for an iso-

lated constitutional violation . . . when the person causing the

violation has final policymaking authority.” Id. Final policy-

making authority may be granted by a state legislature or by

officials who possess that authority. Pembaur, 475 U.S. at

483.

The parties seem to agree that Gammick, the County Dis-

trict Attorney, has final policymaking authority. They dis-

agree, however, about whether the district attorney is a

policymaker for the state or the County. We determine

whether an officer is a state or a county official by looking to

state law to determine whether the particular acts the official

is alleged to have committed fall within the range of the offi-

cial’s state or county functions. Weiner v. San Diego County,

210 F.3d 1025, 1028-29 (9th Cir. 2000) (discussing McMil-

lian v. Monroe County, 520 U.S. 781, 785-86 (1997)).

Botello argues that Gammick, as district attorney, was a

Washoe County employee and policymaker when he acted

“outside the scope of active criminal prosecutions and outside

the scope of prosecutorial discretion” and “specifically

adopted a policy of retaliation against plaintiff for his speech

and ratified all acts of Helzer.” In contrast, the County claims

that under Nevada law, when Gammick made the decision not

to prosecute cases initiated by Botello, he was acting as a

policymaker on behalf of the state and not the County.

[9] The County’s argument is unavailing in two respects.

First, it is foreclosed by our holding in Webb v. Sloan that,

under Nevada law, “principal district attorneys are final poli-

cymakers for the municipality with respect to the conduct of

criminal prosecutions.” Webb, 330 F.3d at 1165. Accordingly,

Gammick was a policymaker for the County when he decided

not to prosecute Botello’s cases.

BOTELLO v. GAMMICK 7529

[10] Second, Botello alleges that other than adopting the

nonprosecution policy, Gammick’s conduct was administra-

tive, not judicial, in nature. The County offers no argument to

rebut the proposition that a district attorney acting in his

administrative and investigative capacity is a County policy-

maker. Instead, the County argues that all of Gammick’s con-

duct in relation to Botello can be characterized as falling

within the district attorney’s prosecutorial function. As dis-

cussed above, we reject this argument. Other than the decision

not to prosecute Botello’s cases, Gammick’s other conduct as

a County policymaker — telephoning the School Police

Department to dissuade it from hiring Botello and insisting

that he be barred from all stages of the investigative process

— were not closely related to the judicial process. Cf. Weiner,

210 F.3d at 1030-31 (holding that under California law a dis-

trict attorney acts as a county officer for some administrative

purposes and a state officer when deciding whether to prose-

cute an individual). Because Gammick was acting as a policy-

maker for the County when he performed the administrative

acts outside the scope of absolute immunity, we reverse the

district court’s dismissal of Botello’s claims against the

County.

III. Conclusion

For the foregoing reasons, the district court’s dismissal is

AFFIRMED as to Gammick’s and Helzer’s decision not to

prosecute Botello’s cases. The district court’s dismissal is

REVERSED and the case is REMANDED as to Gammick’s

and Helzer’s communications to the School Police Depart-

ment in an effort to dissuade it from hiring Botello, their com-

munications demanding that Botello be barred from any stage

of the investigative process and the County’s liability. Costs

on appeal are awarded to appellant Botello.