The opinion of the court was delivered by: Leon Jordan United States District Judge
This civil action is before the court for consideration of the "Motion to Dismiss by Defendant Assistant District Attorney General Garry Chin both Individually and in His Capacity as a State Official" [doc. 22]. No response to the motion has been filed by the plaintiff. "Failure to respond to a motion may be deemed a waiver of any opposition to the relief sought." E.D. TN. LR 7.2.
Plaintiff has brought this lawsuit pursuant to 42 U.S.C. § 1983 for alleged violation of his civil rights. The court has determined that oral argument is unnecessary, and the motion is ripe for the court's consideration.
*fn1 This lawsuit stems from plaintiff's arrest for domestic assault on January 16, 2006, after an altercation with his girlfriend at the River Breeze Motel. Plaintiff claims that he was the one attacked and when he locked his girlfriend out of the room she went to the motel office and faked an injury. The desk clerk called the police who took plaintiff into custody.
On January 19, 2006, plaintiff met with defendant Garry Chin ("Chin") and told him that the charges against him were fabricated and that he would sue him if they were not immediately dismissed. Chin would not discuss plaintiff's case with him. Plaintiff's probable cause hearing was held February 22, 2006, and his girlfriend was subpoenaed to testify. Plaintiff alleges that Chin met with the girlfriend outside the courtroom without his or the girlfriend's attorney and threatened her with falsifying a police report if her testimony differed from what she told the arresting officer. According to plaintiff, his girlfriend wanted to tell the truth about what really happened at the motel but was concerned about having charges placed against her. Apparently, the girlfriend testified consistently with the statement she had given to the police, so plaintiff contends the prosecution had "gotten to this witness." Plaintiff alleged Chin presented "false, coerced, and perjured testimony" to the grand jury. On October 4, 2006, the State moved to dismiss the case against the plaintiff, and the state court entered an order dismissing the charges.
Defendant's motion is brought pursuant to Federal Rule of Civil Procedure 12(b)(6). "Motions to dismiss under Rule 12(b)(6) are designed to test 'whether a cognizable claim has been pleaded in the complaint.'" Fed. Express Corp. v. U.S. Postal Serv., 40 F. Supp. 2d 943, 947 (W.D.Tenn. 1999) (quoting Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)). When reviewing a motion for failure to state a claim upon which relief can be granted under Rule 12(b)(6), the court must construe the complaint in the light most favorable to the plaintiff and accept the factual allegations in the complaint as true. Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998) (citing Meador v. Cabinet for Human Res., 902 F.2d 474, 475 (6th Cir. 1990)).
A. Prosecutorial Immunity
Defendant Chin contends that he is entitled to absolute prosecutorial immunity from the damages claims asserted against him in his individual capacity. As a prosecutor, Chin is entitled to absolute immunity as long as his actions are "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976). "This absolute immunity covers '[a] prosecutor's decision to file a criminal complaint and seek an arrest warrant and the presentation of these materials to a judicial officer.'" Fox v. Van Oosterum, 176 F.3d 342, 353 (6th Cir. 1999) (quoting Ireland v. Tunis, 113 F.3d 1435, 1446 (6th Cir. 1997)). Such absolute immunity is recognized sparingly, and the official seeking the immunity has the burden of showing that he is entitled to the protection. Lomaz v. Hennosy, 151 F.3d 493, 497 (6th Cir. 1998) (citing Burns v. Reed, 500 U.S. 478, 486 (1991)). "The Supreme Court has extended absolute immunity to prosecutors only where their challenged acts were performed while serving as an advocate in legal proceedings." Holloway v. Brush, 220 F.3d 767, 775 (6th Cir. 2000) (citing Kalina v. Fletcher, 522 U.S. 118, 125 (1997)).
In determining whether absolute immunity protects an official for actions alleged to have violated a plaintiff's rights, the court uses a functional approach or analysis. See Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993); Lomaz 151 F.3d at 497. This particular analysis calls for the court to look to the "nature of the function performed, not the identity of the actor who performed it." Buckley, 509 U.S. at 269. "Sixth Circuit precedent has established that the critical inquiry is how closely related is the prosecutor's challenged activity to his role as an advocate intimately associated with the judicial phase of the criminal process." Pusey v. City of Youngstown, 11 F.3d 652, 658 (6th Cir. 1993) (internal quotation marks omitted). Absolute prosecutorial immunity does not protect "administrative or investigative acts antecedent or extraneous to the judicial process." Ireland v. Tunis, 113 F.3d 1435, 1445 (6th Cir. 1997).
However, "[a]bsolute prosecutorial immunity is not defeated by a showing that a prosecutor acted wrongfully or even maliciously. . . . The decision to prosecute . . . 'even if malicious and founded in bad faith, is unquestionably advocatory and at the heart of the holding in Imbler.'" Fox, 176 F.3d at 353 (quoting Grant v. Hollenbach, 870 F.2d 1135, 1138 (6th Cir. 1989)). In Grant, the Sixth Circuit held that prosecutors were entitled to absolute immunity from claims that they conspired to knowingly present false charges to the grand jury and failed to investigate facts before and after the indictment. "The immunity also extends to 'failing to disclose exculpatory and other information concerning witnesses, procuring false testimony, failing to correct perjured testimony, causing a conflict of interest for defense counsel, not disclosing that conflict, . . . putting a "spy" in the defense camp, and "covering up" those allegedly unconstitutional actions.'" Sciance v. Muskingum County, No. C2-98-1075, 2000 WL 1460076, at *4 (S.D. Ohio Sept. 29, 2000) (quoting Jones v. Shankland, 800 F.2d 77, 80 (6th Cir. 1986)).
The first task for the court is to define the actions of the prosecutor which plaintiff contends are sufficient to create liability. Then the court determines whether the "actions are prosecutorial or investigative in nature to establish whether the prosecutor is entitled to absolute immunity." Sciance, 2000 ...