Mirch v. Clifton ( 2015 )

 adjudicated in a preliminary hearing in justice court, challenged by
appellant in a writ of habeas corpus to the district court, and denied by
the district court after holding a hearing, thereby affirming the probable
cause determination. See Jordan v. Bailey, 113 Nev. 1038, 1047, 944 P.2d
828, 834 (1997) (stating that want of probable cause to initiate the
criminal proceeding is a required element of malicious prosecution);
Haupt v. Dillard, 17 F.3d 285, 288-90 (9th Cir. 1994) (holding that under
Nevada law appellant could not challenge in his civil case the Probable
cause determination that was fully adjudicated in his earlier criminal
case); see also Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993)
(holding that absolute immunity extends to acts taken by a prosecutor in
preparing to initiate judicial proceedings); Imbler v. Pacht man, 424 U.S.
409, 422-24 (1976) (holding that prosecutors are absolutely immune from
civil liability for acts taken within the performance of their duties); Duff
v. Lewis, 114 Nev. 564, 569, 958 P.2d 82, 85 (1998) ("Absolute immunity
is . . . necessary to assure that judges, advocates, and witnesses can
perform their respective functions without harassment or intimidation."
(quotation omitted)).
As to appellant's allegations that respondents engaged in
abuse of process during their investigation of appellant before preparing
the affidavit of probable cause, an abuse of process claim "hinges on the
misuse of regularly issued process, in contrast to malicious prosecution
which rests upon the wrongful issuance of process." Nev. Credit Rating
Bureau, Inc. v. Williams, 88 Nev. 601, 606, 503 P.2d 9, 12 (1972).
Because appellant alleges misconduct by respondents prior to the
issuance of any process, his abuse of process claim fails.
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Defamation
As to appellant's defamation claim against Ms. Clifton, we
conclude that the district court properly applied absolute prosecutorial
immunity as the allegedly defamatory statements were part of the on-
going judicial proceedings. Buckley, 509 U.S. at 273 (holding 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 protections of absolute
immunity"). Although appellant argues that certain statements were not
made within the scope of Ms. Clifton's role as an advocate for the State,
the complaint fails to allege any facts that could be drawn in appellant's
favor to support such a reading of the complaint. Buzz Stew, LLC, 124
Nev. at 227-28, 181 P.3d at 672. Accordingly, we
ORDER the judgment of the district court AFFIRMED.'
J.
• J.
Gibbons Pickering
cc: Hon. David A. Hardy, District Judge
Margaret M. Crowley, Settlement Judge
Mirch Law Firm LLP
Attorney General/Carson City
Washoe District Court Clerk
'We have considered appellant's remaining arguments, and conclude
that they do not warrant reversal.
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