919 F2d 144 Greyson v. Higa

919 F.2d 144

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Malcolm George GREYSON, Plaintiff-Appellant,
Emlyn HIGA, Defendant-Appellee.

No. 89-16654.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 16, 1990.*
Decided Nov. 20, 1990.

Before FLETCHER, WIGGINS and RYMER, Circuit Judges.

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Malcolm George Greyson appeals pro se the district court's order adopting the Magistrate's Report and Recommendation and dismissing Greyson's 42 U.S.C. Sec. 1983 suit against prosecutor Emlyn Higa pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. The court held that Greyson's claim is barred under the doctrine of absolute prosecutorial immunity. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.


We review a dismissal for failure to state a claim pursuant to Rule 12(b)(6) de novo. Tanner v. Heise, 879 F.2d 572, 576 (9th Cir.1989). All allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Id. In civil rights cases, where the petitioner is pro se, the court has an obligation to construe the pleadings liberally and to afford petitioner any benefit of the doubt. Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir.1985).


It is well settled that "in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under Sec. 1983." Imbler v. Pachtman, 424 U.S. 409, 431 (1976); see Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir.1986) (en banc). Absolute immunity attaches to prosecutorial conduct "intimately associated with the judicial phase of the criminal process." Imbler, 424 U.S. at 430. However, the Supreme Court in Imbler did not decide whether immunity attaches when the prosecutor acts in an investigative or administrative role. Id. at 430-31. Thus, Imbler left standing the Ninth Circuit rule that a prosecutor enjoys only qualified immunity when he or she acts in an investigative or administrative role. Demery v. Kupperman, 735 F.2d 1139, 1143 (9th Cir.1984), cert. denied, 469 U.S. 1127 (1985).


The line between quasi-judicial and investigative acts by a prosecutor is not always clear. Imbler, 424 U.S. at 431 n. 33. We must focus on the nature of the activity to determine whether it is quasi-judicial. Schlegel v. Bebout, 841 F.2d 937, 943 (9th Cir.1988). "[W]hen a prosecutor decides to litigate, interviews witnesses, and gathers evidence, he or she is engaging in conduct that relates to the preparation of his or her case. This activity enjoys absolute immunity." Id. at 943-44; see also Demery, 735 F.2d at 1144 (conferring with witnesses to determine whether to initiate proceedings is plainly judicial function entitled to absolute immunity).


Greyson contends that Higa acted as an investigator or administrator when he provided "engineering criteria" and conducted an out-of-court experiment during a pretrial interview with Dr. Wong, an expert medical witness, and is therefore only entitled to qualified immunity. However, the record reveals that Higa merely interviewed Dr. Wong prior to his trial testimony, and showed him a partial transcript of Greyson's testimony from his previous trial.1 The interview with Dr. Wong was part of Higa's role in preparing the case against Greyson. Therefore, such conduct is protected by absolute immunity. See Schlegel, 841 F.2d at 943-44.


Dr. Wong testified at trial that he conducted an informal experiment alone in his bedroom the morning of his testimony.2 The record does not show that Higa "engineered" this experiment or functioned as an "engineering consultant." Thus Higa never assumed an investigative or administrative role that would entitle him to only qualified immunity. See Demery, 735 F.2d at 1143.

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Higa's interview of Dr. Wong was intimately associated with the judicial phase of the criminal process. See Schlegel, 841 F.2d at 943-44. Accordingly, Higa's conduct is protected by absolute immunity. See Imbler, 424 U.S. at 430. Therefore, Greyson has failed to state a claim against Higa under section 1983.



The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, we deny Greyson's request for oral argument


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Greyson's first trial for the murder of his infant son ended in conviction, but was reversed on appeal. Greyson's second murder trial resulted in a hung jury. At his second trial, Greyson testified that the injuries to his son occurred when Greyson accidentally stepped on his son as he was getting out of bed. Dr. Wong was to testify at the third trial as to whether it was medically possible that the injuries occurred as Greyson claimed they did


Dr. Wong testified, "I tried doing it this morning, getting off the bed and trying to see how much force could actually be generated by dropping off the end of the bed" (CR 17, Ex. A at 97). Greyson objected to this testimony, and the trial court sustained the objection (id. at 97-98)


Higa contends that because Greyson's conviction was reversed on appeal, Greyson's section 1983 claim is moot. This contention lacks merit. Section 1983 claims can be brought regardless of the outcome on appeal. See Imbler, 424 U.S. at 415 (plaintiff brought section 1983 claim after reversal of criminal conviction and release from prison). Further, a plaintiff can bring a section 1983 claim for nominal damages. See Carey v. Piphus, 435 U.S. 247, 266 n. 24 (1977) (holding that award of nominal damages under section 1983 without proof of actual injury is proper)