Malicious prosecution claims against officer dismissed

Where a man alleged a law enforcement officer presented false testimony to a Virginia special grand jury, resulting in the man being indicted for a murder-for­hire plot, the man’s malicious prosecution claims were dismissed. The officer was entitled to absolute immunity, and the grand jury’s decision indict the man, and the Commonwealth Attorney’s decision to prosecute him, severed the causal chain.

Background

James Christopher Johnson has filed a two-count complaint, in which he brings a claim under 42 U.S.C. § 1983 for a violation of his Fourth Amendment right to be free from malicious prosecution and a separate claim under Virginia common law for malicious prosecution. Both claims stem from the same set of alleged facts, namely, that Rosa Ortiz initiated criminal proceedings against Johnson without probable cause and presented false testimony to a Virginia special grand jury that indicted plaintiff for a murder-for­hire plot to kill his fiancée. Before the court is Ortiz’s motion to dismiss.

Immunity

Ortiz argues that she is entitled to absolute immunity for her testimony to the grand jury under the United States Supreme Court decision in Rehberg v. Paulk, 566 U.S. 356 (2012). Johnson contends that Rehberg immunity does not extend to all of a witness’ actions outside of the grand jury room, and thus the court should allow his claim against Ortiz to proceed based on her conduct solely during the

investigative phase of his criminal case.

Focusing on all of Ortiz’s investigative conduct as alleged in the complaint, and setting aside her grand jury testimony, the complaint does not allege that Ortiz fabricated any evidence during the investigative phase of the proceeding and presented such fabricated evidence to the prosecutor, nor does it allege that Ortiz did anything to pressure the prosecutor such that she overbore the will of the prosecutor by presenting materially false evidence or omitting exculpatory evidence. In fact, the complaint does not allege any conduct by Ortiz-unconstitutional or otherwise-for five years before her grand jury testimony.

It is evident that Johnson is attempting to bypass Ortiz’s absolute immunity as a grand jury witness under Rehberg by now claiming that the core of his malicious prosecution claim does not rest on her testimony to the grand jury but instead centers on her opening the cold case and conducting an eight-year investigation into Cincotta’s murder that culminated in her testimony. But as both the Supreme Court and Fourth Circuit have explained, grand jury witness immunity may not be circumvented by claiming that a witness undertook preparations to present false testimony to the grand jury. Because the complaint’s primary allegations relate to Ortiz’s grand jury testimony, for which she is entitled to absolute immunity under Rehberg, the complaint fails to sustain the § 1983 and common law claims.

Proximate cause

Even if Ortiz did not have absolute immunity, the decision of the special grand jury to indict Johnson and the Commonwealth Attorney’s decision to prosecute him serve as intervening actions that severed the causal chain between Ortiz’s alleged unconstitutional conduct and plaintiff’s injury.

Johnson responds that Ortiz “caused” the indictment by making certain false statements to the special grand jury mischaracterizing Leonard’s description of the crime and how Johnson related to it. In evaluating a § 1983 claim for malicious prosecution, the Fourth Circuit in Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012), rejected the plaintiffs’ argument that officers remained liable because they “misrepresented, withheld, or falsified evidence that ultimately influenced the grand jury,” explaining that an “act of either the prosecutor or the grand jury may break the causal chain,” and thus a “prosecutor’s independent decision to seek an indictment breaks the causal chain unless the officer has misled or unduly pressured the prosecutor.” Here, the complaint does not plead sufficient facts to plausibly allege that Ortiz “lied to or misled the prosecutor,” “failed to disclose exculpatory evidence to the prosecutor” or “unduly pressured the prosecutor to seek the indictment.”

The cases relied upon by Johnson in his opposition brief pre-date the Fourth Circuit’s decision in Evans and involve factual scenarios in which law enforcement officers fabricated evidence to obtain a warrant or misled prosecutors to a substantial degree to obtain indictments. Johnson fails to cite any case that mirrors the factual scenario here, in which the grand jury indicted the plaintiff after having heard the plaintiff’s testimony, as well as the testimony of the defendant and six other witnesses.

Defendant’s motion to dismiss granted.

Johnson v. Ortiz, Case No. 1:23-cv-1431, Feb. 28, 2024. EDVA at Alexandria (Brinkema). VLW 024-3-114. 17 pp.