AND JOHN S. JOHNSON APPEALS v. B. ROBERT STIVERS, II; B. ROBERT STIVERS, I; CHARLES E. ALLEN; STEPHEN L. TACKETT; BRENT L. CALDWELL; AND STIVERS & STIVERS ATTORNEYS AT LAW PROFESSIONAL CORPORATION
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RENDERED: May 28, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO.
1996-CA-001333-MR
AND
1996-CA-003419-MR
JOHN S. JOHNSON
APPELLANT
APPEALS FROM PERRY CIRCUIT COURT
HONORABLE DOUGLAS C. COMBS, JUDGE
ACTION NO. 96-CI-00016
v.
B. ROBERT STIVERS, II; B. ROBERT
STIVERS, I; CHARLES E. ALLEN; STEPHEN L.
TACKETT; BRENT L. CALDWELL; AND
STIVERS & STIVERS ATTORNEYS AT LAW
PROFESSIONAL CORPORATION
APPELLEES
OPINION AND ORDER
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, KNOX, AND MCANULTY, JUDGES.
KNOX, JUDGE:
These are appeals by John S. Johnson (Johnson) from
the dismissal of his lawsuit for damages under 42 U.S.C. § 1983
and 42 U.S.C. § 1985.
We affirm.
In July 1990, the body of Denver Brock was discovered
alongside a roadway in Perry County, Kentucky.
The medical
examiner concluded that the cause of death was consistent with
being struck by a motor vehicle.
seen with Brock.
Johnson was the last person
Johnson was arrested and charged with the
murder of Brock, and, subsequent to a preliminary hearing, the
case was bound over to the Perry County Grand Jury.
Pursuant to
RCr 5.08, Johnson notified then Perry County Commonwealth’s
Attorney Alva Hollon (Hollon) of his desire to present evidence
to the grand jury.
However, Hollon failed to so notify the grand
jury and, on August 15, 1991, Johnson was indicted for the murder
of Denver Brock.
In order to rectify his oversight, Hollon offered to
let Johnson testify before the same grand jury.
Hollon further
agreed that if the grand jury decided that it would not have
indicted Johnson had it originally heard Johnson’s evidence, then
he would dismiss the indictment.
Following the presentation of
Johnson’s evidence, the grand jurors were polled and they
indicated that they would not have indicted Johnson if they had
originally considered his evidence.
The case languished, and in the meantime Hollon was
replaced as Perry County Commonwealth’s Attorney by appellee
Charles Allen (Allen).
On December 7, 1992, Circuit Judge
Douglas Combs (who in the meantime had replaced original Judge
Calvin Manis) entered an order dismissing Johnson’s indictment
“with leave for the Commonwealth to resubmit.”
On July 20, 1993,
Allen wrote the Attorney General’s Office requesting that a
special prosecutor be appointed to prosecute the Johnson case.
The request was prompted because a member of Allen’s office was
the wife of the Public Defender representing Johnson in another
county on different charges and because the family of the victim
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had made attacks upon the integrity of the Perry County
Commonwealth’s Attorney’s office.
The Attorney General’s office appointed appellee B.
Robert Stivers, II (Stivers), Assistant Commonwealth’s Attorney
in the 41st Judicial District, as special prosecutor.
Stivers
thereafter again presented the case to a Perry County Grand Jury
and, on July 29, 1993, Johnson was again indicted for the murder
of Denver Brock.
Meanwhile, Johnson was convicted of an
unrelated murder in Leslie County and sentenced to life
imprisonment.
That murder conviction was upheld on appeal.
Johnson v. Commonwealth, Ky., 892 S.W.2d 558 (1994).
See
Stivers
prosecuted the Leslie County murder case.
In December 1993, the tenure of appellee B. Robert
Stivers, I, as Commonwealth’s Attorney for the 41st Judicial
District ended.
This likewise ended the tenure of his assistant,
B. Robert Stivers, II (Stivers).
Thereafter, the newly elected
Commonwealth’s Attorney for Perry County, appellee Stephen
Tackett (Tackett), assumed responsibility for the prosecution of
Johnson.
However, in April 1994, the family of Denver Brock
asked Stivers to reenter the case as a privately paid prosecutor,
a procedure permitted under Commonwealth v. Hubbard, Ky., 777
S.W.2d 882, 889 (1989).
The former Deputy Attorney General,
appellee Brent L. Caldwell (Caldwell), signed the appointment
letter.
Meanwhile, in December 1993, Johnson moved to dismiss
the indictment alleging that there was no competent evidence to
show that Johnson’s vehicle had hit Brock, whether with criminal
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intent or otherwise.
On August 12, 1994, Johnson again moved to
dismiss the murder indictment arguing that Hollon’s original
agreement to dismiss amounted to an agreement to dismiss with
prejudice.
Johnson argued that under Workman v. Commonwealth,
Ky., 580 S.W.2d 206 (1979), the Commonwealth was bound by this
alleged bargain and, therefore, he could not be legally indicted
following the original dismissal.
While the Commonwealth disagreed with Johnson’s version
of Hollon’s offer and the resulting bargain, nevertheless, on
December 15, 1994, the trial court dismissed the second murder
indictment with prejudice.
Appellee Stivers moved to alter,
vacate, or amend the order; however, appellee Tackett, though he
disagreed with the trial court’s ruling, thought the case was
“stale” and, during the hearing on Stivers’ motion, moved to
withdraw the motion and to relieve Stivers from additional
responsibility in the case.
The court granted both motions.
On January 16, 1996, Johnson filed the instant action
asserting civil rights claims pursuant to 42 U.S.C. §§ 1983 and
1985.
Named as defendants were B. Robert Stivers, II;
B. Robert
Stivers, I; Charles E. Allen; Stephen L. Tackett; Brent L.
Caldwell; and Stivers & Stivers Attorneys at Law, PSC.
None of
the parties were named in their individual capacities.
The
pleading alleges “negligence, malpractice, misrepresentation,
fraud, violations of [Johnson’s] civil and constitutional rights,
[and] violations of [Johnson’s] statutory rights and state and
federally protected civil liberties.”
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On February 5, 1996, the defendants filed a motion to
dismiss the complaint, arguing that the complaint failed to state
a claim upon which relief could be granted; that the defendants
were protected by sovereign immunity and prosecutorial immunity;
and that service of process was deficient with respect to B.
Robert Stivers, I.
On February 20, 1996, the trial court granted
the defendants’ motion, dismissing the case with prejudice.
Following various motions, objections, and other litigation in
the trial court and this Court, these appeals were perfected.
Johnson raises a variety of contentions on this appeal;
however, even were we inclined to agree with the alleged
procedural deficiencies raised by Johnson, any error by the trial
court was harmless because the appellees are immune from the
claims brought by appellant.
A criminal prosecutor enjoys absolute immunity from
claims for damages asserted under § 1983 for actions taken in the
presentation of the state’s case when he acts within the scope of
his prosecutorial duties.
Imbler v. Patchman, 424 U.S. 409, 420,
96 S. Ct. 984, 990, 47 L. Ed. 2d 128 (1976); Grant v. Hollenbach,
870 F.2d 1135, 1137 (6th Cir. 1989);
Boyd v. Biggers, 31 F.3d
279, 285 (5th Cir. 1994); Joseph v. Patterson, 795 F.2d 549 (6th
Cir. 1986).
“[A]cts undertaken by the prosecutor in preparing
for the initiation of judicial proceedings or for trial, and
which occur in the course of his role as an advocate for the
State, are entitled to the protections of absolute immunity.”
Buckly v. Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct. 2606, 2615,
125 L. Ed. 2d 209 (1993).
Prosecutorial immunity applies to the
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prosecutor’s actions in initiating the prosecution and in
carrying the case through the judicial process.
Hampton, 1 F.3d 315, 318 (5th Cir. 1991).
Graves v.
This absolute
prosecutorial immunity extends to § 1983 actions predicated on
malicious prosecution.
Brummett v. Camble, 946 F.2d 1178, 1181
(5th Cir. 1991), cert. denied 504 U.S. 965, 112 S. Ct. 2323, 119
L. Ed. 2d 241 (1992).
“Absolute prosecutorial immunity is not
defeated by a showing that the prosecutor acts wrongfully or even
maliciously, or because the criminal defendant ultimately
prevailed on appeal or in a habeas corpus proceeding.”
Grant at
1138, quoting M. Schwartz & J. Kirklin, Section 1983 Litigation:
Claims, Defenses, and Fees § 7.8 (1986).
In the case at bar, the wrongful acts and abridgments
of constitutional rights alleged against appellees B. Robert
Stivers, II; B. Robert Stivers, I; Charles Allen; Stephen
Tackett; and Brent Caldwell occurred within the scope of their
official duties as officers within the prosecutorial system of
the Commonwealth of Kentucky.
The appellees were acting in an
advacatory role in furtherance of prosecuting the murder of
Denver Brock.
We conclude that the conduct of the appellees
springs directly from the execution of their duties as judicial
officers and that they are entitled to absolute immunity from
this § 1983 suit.1
Grant, 870 F.2d at 1140.
Accordingly, the
trial court did not err in dismissing this action.
1
While B. Robert Stivers, I and Brent L. Caldwell were
not directly involved as prosecutors in the murder proceedings
against Johnson, in the case at bar, in view of their roles as
judicial officers ancillary to the proceedings, we conclude they,
too, qualify for absolute immunity.
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The suit against appellee Stivers & Stivers, PSC, was
likewise properly dismissed.
The Stiverses were clearly not
acting within the scope of employment of their law firm in the
matters under litigation - they were acting within the scope of
their duties as judicial officers - and hence the firm may not be
held liable pursuant to the rules regarding employer liability
under the doctrine of respondeat superior. See Horne v Hall, Ky.
246 S.W.2d 241 (1951).
Moreover, respondeat superior may not
serve as a basis for imposing liability under § 1983.
Armaco v.
American Honda Motor Co. 917 F. Supp 142 (DC Conn. 1996).
In his civil complaint, Johnson also alleged a 42
U.S.C. § 1985 violation.
The absolute immunity discussion,
supra, applies whether a § 1983 or § 1985 violation is alleged.
Grant 870 F.2d at 1135 n. 1.
Finally, on July 24, 1998, an order was entered by this
Court passing to this panel a motion by Johnson for an order
instructing the trial court to produce relevant portions of the
records or to remand the matter back to the trial court.
In view
of our discussion herein, and being otherwise sufficiently
advised, the appellant’s motion is denied.
For the foregoing reasons the order of the trial court
dismissing the § 1983 claims of Johnson is affirmed, and it is
ORDERED that the motion for an order instructing the trial court
to produce portions of the record or to remand is DENIED.
ALL CONCUR.
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ENTERED:
May 28, 1999
/S/
D. Knox
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT, PRO SE:
BRIEF FOR APPELLEE:
John S. Johnson
West Liberty, Kentucky
Albert B. Chandler III
Attorney General
D. Brent Irvin
Assistant Attorney General
Frankfort, Kentucky
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