IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

LANCE A. BRITTON, 

Plaintiffs, 

v. 

KLAMATH COUNTY, et al, 

Defendants. 

CLARKE, Magistrate Judge, 

Case No. 1: 15-cv-02086-CL 

REPORT AND RECOMMENDATION 

Plaintiff Lance A. Britton brings claims against seven defendants under 42 U.S.C. § 1983 

for violations of his civil rights. His original complaint was dismissed without prejudice to filing 

an amended complaint. The case comes before the Court on a Motion to Dismiss (#18) filed by 

defendants Jody Vaughan and Robert Patridge. For the reasons below, the motion should be 

GRANTED. Plaintiff has not identified any allegations or potential allegations that either 

defendant acted outside of his or her prosecutorial discretion as attorneys for the Klamath County 

District Attorney's Office. Both defendants, therefore, have absolute immunity from suit, and 

dismissal should be with prejudice. 

BACKGROUND 

Plaintiffs claims arise out of an incident that occurred when he pulled his car to the side 

of the road near his home to talk to another man, who Plaintiff presumed to be a neighbor. 

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Plaintiff alleges that the man waved him to the side of the road. When Plaintiff pulled over, he 

alleges that he could smell liquor on the man's breath and it "became obvious that he was under 

the influence of intoxicants." The two men exchanged a few words that quickly became heated, 

and, ultimately, Plaintiff claims, the other man pulled out his revolver and began firing at him, 

hitting the window and body of Plaintiffs truck, and injuring Plaintiffs hand and knee. 

Plaintiffs Amended Complaint then describes a complicated scenario by which Plaintiff 

manages to load his own firearm one-handed, pursue his attacker, and fire back at him. 

Further, the complaint explains how Plaintiff proceeded to the hospital, and gave his 

report to the Klamath County Sheriffs Deputy Melvin Ray, but Plaintiff disputes many of the 

notes made in the deputy's report. He also disputes much of the evidence gathered and the 

investigatory steps taken and conclusions reached by law enforcement as they processed the 

scene and interviewed Plaintiff and the other man involved, Stephen Pearson. 

Plaintiffs allegations concerning defendant Patridge, Klamath County District Attorney, 

and defendant Vaughan, then a deputy district attorney, arise out of Vaughan's decision to 

prosecute Plaintiff, and indict him on a charge for Assault in the First Degree, which Plaintiff 

claims means that Vaughan lied to or manipulated the grand jury. Plaintiff claims that Vaughan 

"breached [Plaintiffs] due process rights by not being aware of the entire file at her disposal." 

He claims that she did not listen to Pearson's recorded statement, and she did not even know that 

it existed until two months after Plaintiff was indicted. 

Plaintiff also claims that he believes that his neighbor Frank Paulson's attorney Scott 

Carter "exerted undue influence on [Deputy] Kennedy and Vaughan since Carter was previously 

a Klamath County deputy prosecutor and is now a public defender." Plaintiff offers no specific 

allegation of misconduct, however. 

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DISCUSSION 

A prosecutor is absolutely immune when acting as an advocate for the state by engaging 

in conduct that is "intimately associated with the judicial phase of the criminal process." Imbler 

v. Pachtman, 424 U.S. 409, 430-31 (1976); see also Van de Kamp v. Goldstein, 555 U.S. 335 

(2009). This means that "acts undertaken by a prosecutor in preparing for the initiation of 

judicial proceedings or for trial, and which occur in the course of his role as an advocate for the 

State, are entitled to the protection of absolute immunity." Buckley v. Fitzsimmons, 509 U.S. 

259, 273 (1993). 

Prosecutors are not absolutely immune from liability for administrative actions or 

investigative functions not closely related to either trial preparation or the trial process. See, e.g., 

Hart v. Hodges, 587 F.3d 1288 (11th Cir. 2009) cert. denied 130 S. Ct. 3389 (2010). 

Investigative functions include authorizing a warrantless wiretap in the interest of national 

security, Mitchell v. Forsyth, 472 U.S. 511, 520 (1985), and giving legal advice to police 

officers. Burns v. Reed, 500 U.S. 478, 496 (1991). In such a capacity, a prosecutor would only 

be entitled to qualified immunity. 

By contrast, prosecutors have been held absolutely immune to carry out such advocacy 

actions as: deciding whether to prosecute; engaging in pretrial litigation activities concerning 

applications for arrest and search warrants, bail applications, and suppression motions, Simon v. 

City of NY, 727 F.3d 167, 171-74 (2d Cir. 2013); preparing for trial, including interviewing 

witnesses and evaluating evidence, Giraldo v. Kessler, 694 F.3d 161, 167 (2d Cir. 2012); failing 

to tum over exculpatory material to defense, Warney v. Monroe Cnty., 587 F.3d 113, 120-26 (2d 

Cir. 2009), cert. denied, 131 S. Ct. 82 (201 O); plea bargaining; entering into release-dismissal 

agreement, Cady v. Arenac Cnty., 574 F.3d 334, 341 (6th Cir. 2009); and making sentence 

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recommendations, Brown v. Cal. Dep 't of Corr., 554 F.3d 747, 750-51 (9th Cir. 2009). Using a 

grand jury to initiate prosecution and efforts made to indict are both covered by absolute 

immunity. Milstein v. Cooley, 257 F. 3d 1004, 1012 (2001). 

Prosecutorial immunity protects the prosecutor in her role as an advocate even if she 

acted in clear violation of law, or even "with an improper state of mind or improper motive." 

Shmueli v. City of NY, 424 F.3d 231, 237 (2d Cir. 2005)(citing Bernard v. Cnty. of Suffolk, 356 

F.3d 495 (2d Cir. 2004)). In Imbler v. Pachtman, the Supreme Court held that a prosecutor was 

entitled to absolute immunity for "initiating a prosecution and in presenting the State's case." 

424 U.S. 409. The Court found that prosecutorial immunity protected even the knowing use of 

false testimony at trial and deliberate suppression of exculpatory evidence. Id. The Court 

granted absolute immunity after considering two issues: (1) the availability at common law, and 

(2) whether absolute immunity would undermine the goals of 1983. Id. at 431. At common law, 

prosecutors had immunity from suits based on malicious prosecution and defamation. In 

addition, the Court reasoned that absolute prosecutorial immunity properly shields prosecutors 

from suits by disgruntled criminal defendants, and protects their ability to act decisively. Id. The 

Court found, on the one hand, that qualified immunity would not adequately protect prosecutors 

and, on the other hand, that the remedies of professional self-discipline and criminal sanctions 

would serve as adequate checks on the broad discretion of prosecutors. Id. at 430-31. 

In this case, nearly all of Plaintiffs claims arise out of the police investigation of the 

incident that occurred between Plaintiff and Mr. Pearson. 1 While Plaintiff attempts to claim that 

defendants Vaughan and Patridge were involved in that investigation, all of the facts alleged 

1 Plaintiff also brings claims arising out of his conditions of confinement, but those are not at 

issue in this motion. 

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show that their actions were "intimately associated with the judicial phase of the criminal 

process." The actions taken prior to Plaintiffs indictment were related to evaluating evidence 

and initiating prosecution through the grand jury, which are prosecutorial functions entitled to 

absolute immunity, as discussed above. Finally, taking as true Plaintiffs allegations of 

intentional misconduct, undue influence, and malicious prosecution, the Supreme Court has ruled 

that even conduct in violation of the law is entitled to immunity. Therefore, Plaintiffs claims 

against the attorneys of the Klamath County District Attorney's Office should be dismissed with 

prejudice because the defendants are entitled to absolute immunity. 

RECOMMENDATION 

For the reasons stated above, the defendants' Motion to Dismiss (#18) should be 

GRANTED, and plaintiffs claims should be dismissed with prejudice. 

This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 

Rule 4(a)(l) should not be filed until entry of the district court's judgment or appealable order. 

The Report and Recommendation will be referred to a district judge. Objections to this 

Report and Recommendation, if any, are due by December 12, 2012. If objections are filed, any 

response to the objections is due by December 26, 2012. See FED. R. Crv. P. 72, 6. 

United States Magistrate Judge 

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