It is one thing to allege no more than official conduct injurious to reputation and thus tantamount to defamation. See Paul v. Davis, supra. It is quite another to allege that the state has unlawfully deprived an individual of his freedom of choice, a fundamental component of that personal liberty which is broadly
protected by the Fourteenth Amendment. Plaintiff avers the latter, and, in my view, thereby states a cause of action under Sections 1983 and 1985.
As to the immunity issue raised by defendants Wein and Zerby, the Court is aware of the recent holding in Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128, 18 Crim. L. 3067 (1976), that a state prosecutor is absolutely immune from a civil suit for damages under Section 1983 where the allegations of a constitutional deprivation are based solely on his initiating a prosecution and presenting the state's case -- i.e., on the judicial phase of his activities. Here, however, plaintiff at least in part challenges alleged prosecutorial conduct that was neither judicial nor even quasi-judicial, but rather of a police/investigative nature. The immunity to which the defendant prosecutors claim entitlement does not extend to their conduct while engaged in such police activities as recruiting or cultivating informants. See Hampton v. Chicago, 484 F.2d 602 (7th Cir. 1973) (Stevens, J.); Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965); Ames v. Vavreck, 356 F. Supp. 931 (D.Minn. 1973). See also Imbler v. Pachtman, supra (specifically declining to consider such an extension of prosecutorial immunity).
For the reasons set forth above, defendants' motions to dismiss will be denied. An appropriate Order will issue.
AND NOW, to-wit, this 23rd day of July, 1976, in accordance with the foregoing memorandum of decision in the above-captioned case, IT IS ORDERED that defendants' motions to dismiss be and the same are hereby denied.