United States District Court, D. Idaho
SHAWN M. KESLING, Plaintiff,
ABRAHAM WINGROVE, DANICA COMSTOCK, MATTHEW BUIE, JEREMIAH SCOTT, JAN M. BENNETTS, JILL LONGHURST, ADA COUNTY PUBLIC DEFENDER’S OFFICE, ADA COUNTY SHERIFF’S OFFICE and STATE OF IDAHO, Defendants.
ORDER ON POST-JUDGMENT MOTION TO ALTER OR AMEND
Lynn Winmill, U.S. District Court Judge.
April 15, 2019, the Court dismissed Plaintiff Shawn
Kesling’s case without prejudice as being barred by
Heck v. Humphrey, 512 U.S. 477 (1994). Now pending
before the Court is Plaintiff’s Motion to Alter or
Amend Judgment. (Dkt. 9.) Plaintiff now asserts that some of
his claims should not be barred because they are based on
charges that were dismissed, and that some or all of his
civil rights claims raise only procedural issues and do not
call into question the validity of some or all the criminal
counts upon which he was convicted. Plaintiff has not fully
explained the details of his assertions.
IS ORDERED that Plaintiff’s Motion to Alter or
Amend (Dkt. 9) is GRANTED in part, to the extent that he will
be permitted to file a motion to amend and an amended
complaint. The motion to amend must specifically identify the
charges that were dismissed and the claims arising from those
charges. The motion must particularly set forth in a clearly
distinguishable manner his convictions, the factual basis of
those convictions, and any of the claims that he agrees are
presently barred by Heck v. Humphrey because they
call into question those convictions. He must allege facts
showing that the claims arising from the dismissed charges
are not intertwined with the facts that are the basis for his
convictions, and state why the facts supporting the claims
upon which he desires to proceed do not call into question
the convictions. The motion to amend shall be accompanied by
a proposed amended complaint.
IS FURTHER ORDERED that the amended complaint shall
be formatted as follows: For each cause of action against
each defendant, Plaintiff shall state the following: (1) the
name of the person or entity that caused the alleged
deprivation of his constitutional rights; (2) facts showing
the defendant is a state actor (such as state employment or a
state contract) or a private entity performing a state
function; (3) the dates on which the conduct of the defendant
allegedly took place; (4) the specific conduct or action
Plaintiff alleges is unconstitutional; (5) the particular
constitutional provision (or state law provision) Plaintiff
alleges has been violated; (6) facts alleging that the
elements of the violation are met; (7) the injury or damages
Plaintiff personally suffered; and (8) the particular type of
relief he is seeking from each defendant.
IS FURTHER ORDERED that Plaintiff should take into
consideration the following when deciding upon the defendants
to include in his amended complaint.
appellate courts have repeatedly ruled that a prosecutor is
entitled to absolute quasi-judicial immunity from liability
for damages under 42 U.S.C. § 1983 when the alleged
wrongful acts were committed by the prosecutor in the
performance of an integral part of the criminal judicial
process. See, e.g., Robichaud v.
Ronan, 351 F.2d 533, 536 (9th Cir. 1965); Imbler v.
Pachtman, 424 U.S. 409 (1976). Tasks that are an
integral part of the criminal justice process include
initiating and pursuing a criminal prosecution,
Imbler, 424 U.S. at 410, preparing and filing
charging documents, Kalina v. Fletcher, 522 U.S.
118, 131 (1997), and participating in probable cause
hearings, Burns v. Reed, 500 U.S. 478 (1991).
Nonetheless, because the immunity test is based upon
function, a prosecutor has only qualified immunity for
“performing investigatory or administrative functions,
or [when he] is essentially functioning as a police officer
or detective.” Broam v. Bogan, 320 F.3d 1023,
1028 (9th Cir. 2003). In Bly-Magee v. California,
236 F.3d 1014 (9th Cir. 2001), the United States Court of
Appeals for the Ninth Circuit extended quasi-judicial
immunity for attorneys general for conduct related to their
state litigation duties in defending state actors in civil
suits. The Complaint should clearly state facts showing the
type of prosecutorial functions that allegedly resulted in a
Criminal Defense Attorneys and Public Defenders
West v. Atkins, 487 U.S. 42 (1988), the United
States Supreme Court held that that criminal defense
attorneys-even if they are acting as public defenders paid by
the government-are not considered “state actors”
under § 1983 because, in their unique function, they are
not acting on behalf of the State:
Indeed, Polk County v. Dodson, [454 U.S. 312 (1981)]
… is the only case in which this Court has determined
that a person who is employed by the State and who is sued
under § 1983 for abusing his position in the performance
of his assigned tasks was not acting under color of
state law. The Court held that “a public defender does
not act under color of state law when performing a
lawyer’s traditional functions as counsel to a
defendant in a criminal proceeding.” 454 U.S., at 325,
102 S.Ct., at 453. In this capacity, the Court noted, a
public defender differs from the typical government employee
and state actor. While performing his duties, the public
defender retains all of the essential attributes of a private
attorney, including, most importantly, his
“professional independence, ” which the State is
constitutionally obliged to respect. Id., at
321-322, 102 S.Ct., at 451. A criminal lawyer’s
professional and ethical obligations require him to act in a
role independent of and in opposition to the State.
Id., at 318- 319, 320, 102 S.Ct., at 450. The Court
accordingly concluded that when representing an indigent
defendant in a state criminal proceeding, the public defender
does not act under color of state law for purposes of §
1983 because he “is not acting on behalf of the State;
he is the State's adversary.” Id., at 323,
n. 13, 102 S.Ct., at 452, n. 13. See also Lugar v.
Edmondson Oil Co., 457 U.S., at 936, n. 18, 102 S.Ct.,
at 2753, n. 18.
Id. at 50 (emphasis added). As a result, Plaintiff
cannot bring a civil rights lawsuit against his defense
addition, Plaintiff shall include facts showing that he can
meet the Monell requirements if Plaintiff desires to
include a municipality (city or county entity) as a defendant
in the amended complaint. To state a claim against a
municipality, a pleading must allege that the execution of an
official policy or unofficial custom of the municipality
inflicted the injury of which the plaintiff complains.
Monell v. Dept. of Soc. Serv. of New York, 436 U.S.
658, 694 (1978). That is, “a municipality can be found
liable under § 1983 only where the municipality itself
causes the constitutional violation at issue.” City
of Canton v. Harris, 489 U.S. 378, 385 (1989).
Monell, requisite elements of a § 1983 claim
against a municipality or private entity performing a state
function are the following: (1) the plaintiff was deprived of
a constitutional right; (2) the municipality or entity had a
policy or custom; (3) the policy or custom amounted to
deliberate indifference to the plaintiff’s
constitutional right; and (4) the policy or custom was the
moving force behind the ...