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. § 1367.3II. 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 at1013 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.