Spear v. Town of West Hartford

771 F. Supp. 521

John M. SPEAR and Spear Printing Company, Inc. v. TOWN OF WEST HARTFORD, Marjorie S. Wilder, Corporation Counsel, and Robert R. McCue, Chief of Police and Acting Town Manager, in their official and individual capacities, and Summit Women's Center West, Inc.

Civ. No. H-90-682 (AHN).

United States District Court, D. Connecticut.

April 17, 1991.

COPYRIGHT MATERIAL OMITTED

Joseph P. Secola, New Milford, Conn. and George Mercer, Groton, Conn., for plaintiffs.

David T. Ryan, Robinson & Cole, James J. Szerejko, Halloran & Sage, and Elliot B. Spector and Scott M. Karsten, Sack, Spector & Barrett, West Hartford, Conn., for defendants.

RULING ON MOTIONS TO DISMISS

NEVAS, District Judge.

On August 22, 1990, John Spear ("Spear") and Spear Printing Company, Inc. ("Spear Printing"), commenced this section 1983 action against the Town of West Hartford ("the Town"), Marjorie Wilder ("Wilder"), Corporation Counsel for the Town of West Hartford, Robert McCue ("McCue"), Police Chief and acting Town Manager for the Town of West Hartford, and Summit Women's Center West, Inc. ("Summit").¹ The plaintiffs allege violations of the First and Fourteenth Amendments (Count I), vexatious litigation (Count II), and libel and defamation (Count III). The defendants now move to dismiss all counts of the complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P. For the reasons stated below the defendants' motions to dismiss are granted.

DISCUSSION

When considering a motion to dismiss the court accepts all factual allegations in the complaint as true and draws inferences from these allegations in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Corcoran v. American Plan Corp., 886 F.2d 16, 17 (2d Cir.1989). Dismissal is not warranted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Patton v. Dole, 806 F.2d 24, 30 (2d Cir.1986). "The issue is not whether a plaintiff's success on the merits is likely but rather whether the claimant is entitled to proceed beyond the threshold in attempting to establish his claims." De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir.1978), cert. denied, 441 U.S. 965, 99 S.Ct. 2416, 60 L.Ed.2d 1072 (1979). Thus, the question for this court to decide is "whether or not it appears to a certainty under existing law that no relief can be granted under any set of facts that might be proved in support of plaintiff's claims." De La Cruz, 582 F.2d at 48.

I. BACKGROUND

A. Town of West Hartford v. Operation Rescue

Spear is the editor of the Orange County Post ("The Post"), a weekly newspaper published in Washingtonville, New York. Spear Printing, a corporation owned by Spear and others, publishes The Post. On April 4, 1989, Spear wrote and published an editorial entitled "Northern Rednecks" in which he commented upon and sharply criticized the actions of the West Hartford Police Department in attempting to disband an Operation Rescue anti-abortion demonstration in front of the Summit Women's Center in West Hartford, Connecticut. At some point between April 4 and April 20, 1989, a copy of the editorial was given to the Town's corporation counsel. On June 27, 1989, the West Hartford Town Council passed a resolution authorizing Wilder "to take whatever legal action necessary" to stop future Operation Rescue protests from occurring in the Town. Two days later, the Town, through the office of its corporation counsel, commenced civil action in the United States District Court for the District of Connecticut, to prohibit future demonstrations in the Town.² Wilder and McCue authorized the filing of the complaint, in which two of the defendants named were Spear and Spear Printing.³ The complaint included causes of action pursuant to the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq., and alleged, among other things, a conspiracy to interfere with civil rights.⁴ The complaint also sought injunctive relief. United States District Judge Peter C. Dorsey issued a temporary injunction on June 29, 1989 and extended the injunction on July 13, 1989.

On September 22, 1989, Summit filed an intervenor complaint, also naming Spear and Spear Printing as defendants.⁵ On December 6, 1989, the Town and Summit filed a joint amended complaint. The joint amended complaint dropped the allegations against Spear and Spear Printing and thereby terminated the litigation against them.

B. The Instant Action

Here, the plaintiffs make several allegations. First, they contend that the temporary injunction caused an intimidating and chilling effect upon their First Amendment right to freedom of the press. The plaintiffs also allege that between June 17 and 29, 1989, the Town and Summit agreed to act together in commencing litigation against Spear and Spear Printing, and that the joint decision violated their due process rights. The defendants' response is threefold. Wilder and McCue argue that they are absolutely immune from suit because they authorized the filing of the Town's complaint in their official capacities. The Town argues that the complaint fails to state a cause of action under section 1983. And Summit argues that it was not a "state actor acting under color of law" and therefore it is immune from a section 1983 action.

II. COUNT ONE: 42 U.S.C. § 1983

A. Wilder and McCue

The plaintiffs allege that Wilder and McCue authorized the filing of the Town's complaint against them.⁶ Wilder and McCue contend that they are absolutely immune from suit because they initiated proceedings against the plaintiffs in their capacities as government officials. The court agrees with Wilder and McCue.

Absolute immunity is an affirmative defense that serves to protect government officials, when performing discretionary acts, from personal liability under section 1983. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Dobosz v. Walsh, 892 F.2d 1135, 1140 (2d Cir.1989). Absolute immunity has been accorded to various categories of government officials in order to enable them to function independently, and without fear or harassment. Government officials that enjoy the protection of absolute immunity include prosecutors, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) and high executive officers engaged in quasi-judicial functions, Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978).

In Imbler, the Supreme Court held that absolute immunity from section 1983 liability exists for prosecutorial activities "intimately associated with the judicial phase of the criminal process." Imbler, 424 U.S. at 430, 96 S.Ct. at 995; accord Butz, 438 U.S. at 510-511, 98 S.Ct. at 2913. In Butz, the Supreme Court analogized government administrative proceedings to criminal prosecutions. The Court held that government officials initiating administrative proceedings, and agency attorneys introducing evidence and cross-examining witnesses in them, are absolutely immune from liability in damages for their decisions. Butz, 438 U.S. at 512-517, 98 S.Ct. at 2913-2916. The Court reasoned that were government officials and attorneys subject to liability, they "might hesitate to bring forward some witnesses or documents" for fear that the proof might turn out to be false. Butz, 438 U.S. at 517, 98 S.Ct. at 2916.

The Second Circuit extended absolute immunity to government attorneys who defend civil actions in Barrett v. United States, 798 F.2d 565 (2d Cir.1986). In Barrett the court reasoned that:

It is urged that absolute immunity ought not be accorded when the government attorney defends a civil suit. We disagree. It is true that the successful plaintiff in such litigation, having gained some or all of the relief sought, is unlikely to follow up with a harassing suit against the defending government lawyer. Also, the risk to the successful government civil defense attorney of becoming the victim of vexatious litigation by a disappointed litigant is probably less than if the government attorney had initiated the litigation. However, that risk is far from non-existent. His image may not be comparable to that of a prosecutor, but it is not difficult to conceive of situations where, although the government is the defendant, its counsel asserts affirmative defenses.... tending to upset or excite resentment on the part of the civil plaintiff.... His function as a government advocate therefore entitles him to absolute immunity, which is `necessary to assure that.... advocates ... can perform their respective functions without harassment or intimidation.'

Barrett, 798 F.2d at 572 (quoting Butz, 438 U.S. at 512, 98 S.Ct. at 2913-2914) (emphasis supplied). For the same reasons, absolute immunity has also been afforded to municipal attorneys who initiate civil actions.⁷

Here, plaintiffs allege that Wilder and McCue authorized the filing of the complaint and that McCue verified the facts submitted in the complaint. The plaintiffs also allege that Wilder and McCue initiated the suit pursuant to the Town Council resolution in which Wilder and McCue were directed to take "whatever legal action necessary" to prevent future anti-abortion demonstrations. Clearly, Wilder and McCue acted in their official capacities in response to a directive from the Town Council. Accordingly, Wilder and McCue are absolutely immune, in their official and individual capacities, from section 1983 liability. The court thus dismisses Count I of the complaint as to Wilder and McCue.

B. The Town

1. Deprivation of First Amendment Rights

The Town contends that plaintiffs fail to state a cause of action under section 1983 for deprivation of their First Amendment rights. In Laird v. Tatum, 408 U.S. 1, 12, 92 S.Ct. 2318, 2325, 33 L.Ed.2d 154 (1972), the Supreme Court observed that ...