Thomas Lee GOLDSTEIN, Plaintiff-Appellee, v. John Van De Kamp and Curt Livesay, Defendants-Appellants.
No. 06-55537.
United States Court of Appeals, Ninth Circuit.
March 28, 2007
481 F.3d 1170
Argued and Submitted March 5, 2007.
Ronald O. Kaye, David S. McLane, Marilyn E. Bednarski, Kaye, McLane & Bednarski, LLP, Pasadena, CA, for the plaintiff-appellee.
HENDERSON, District Judge.
In this case, we are asked to determine whether an elected district attorney and his chief deputy are entitled to absolute immunity from suit based on allegations that they failed to develop policies and procedures, and failed to adequately train and supervise their subordinates, to fulfill their constitutional obligation of ensuring that information regarding jailhouse informants was shared among prosecutors in their office. See Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). For the reasons discussed in this opinion, we hold that they are not, and we therefore affirm the opinion of the district court.
I. Background
After serving twenty-four years in prison, Plaintiff-Appellee Thomas Lee Goldstein was released on April 2, 2004, following this Court‘s affirmance of the district court‘s order granting Goldstein‘s petition for habeas relief. Goldstein has now filed a complaint seeking damages under
The claims relevant to this appeal stem from the testimony at Goldstein‘s 1980 criminal trial of Edward Floyd Fink, a jailhouse informant. Fink testified that Goldstein confessed the murder to him while both were being detained in the Long Beach City Jail. Goldstein alleges that this testimony was false, as was Fink‘s testimony that he was not receiving any benefits for testifying against Goldstein and had never received any benefits for assisting law enforcement in the past. Fink had, in fact, been acting as an informant for the Long Beach Police Department for several years and had received multiple reduced sentences in return. Although other deputy district attorneys in the Los Angeles County District Attorney‘s Office were aware of the benefits provided to Fink in exchange for his testimony against Goldstein, this critical impeachment evidence was never shared with the deputy district attorneys prosecuting Goldstein‘s case, allegedly because no system of sharing such information existed in the District Attorney‘s Office at the time and because deputy district attorneys were not adequately trained or supervised to share such information. As a result, evidence that could have been used
Several years prior to Goldstein‘s arrest and conviction, the Supreme Court explained that prosecutors’ offices have a constitutional obligation to establish “procedures and regulations ... to insure communication of all relevant information on each case [including promises made to informants in exchange for testimony in that case] to every lawyer who deals with it.” Giglio, 405 U.S. at 154. Thus, Goldstein alleges that Van De Kamp and Livesay are liable under
Van De Kamp and Livesay sought dismissal of the claims against them, under
II. Jurisdiction and Standard of Review
Although we do not generally have jurisdiction over interlocutory appeals of denials of motions to dismiss, we do have jurisdiction over such appeals where the district court denied a claim of absolute immunity. Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Such denials are immediately appealable because “the essence of absolute immunity is its possessor‘s entitlement not to have to answer for his conduct in a civil damages action,” an entitlement that “is effectively lost if a case is erroneously permitted to go to trial.” Id. at 525-26, 105 S.Ct. 2806.
Whether a public official is entitled to absolute immunity is a question of law that is reviewed de novo. Botello v. Gammick, 413 F.3d 971, 975 (9th Cir.2005), cert. denied, 546 U.S. 1215, 126 S.Ct. 1419, 164 L.Ed.2d 116 (2006). Because this appeal stems from a ruling on a motion to dismiss for failure to state a claim, we assume all factual allegations in the complaint to be true. Id.
In addition, “[t]o decide whether absolute immunity applies, we assume without deciding that [Goldstein] has alleged a deprivation of a constitutional right under
III. Discussion
Courts have recognized two types of immunity from suit under
As its name implies, absolute immunity is an absolute bar to liability. Qualified immunity, on the other hand, shields officials from suits for damages only when their alleged conduct either does not violate a constitutional right or violates a constitutional right that was not “clearly established,” meaning that a reasonable person in the official‘s position would not have known “his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
“The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties.” Burns v. Reed, 500 U.S. 478, 486-87, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). The official seeking absolute immunity therefore bears the burden of demonstrating that it is warranted, and the Supreme Court has been “quite sparing in its recognition of claims to absolute official immunity.” Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988).
A prosecutor is entitled to absolute immunity under
Applying this functional analysis, the Supreme Court has held that prosecutors are absolutely immune from
On the other hand, prosecutors do not have absolute immunity “for advising police officers during the investigative phase of a criminal case, performing acts which are generally considered functions of the police, acting prior to having probable cause to arrest, or making statements to the public concerning criminal proceedings.” Botello, 413 F.3d at 976-77 (citing Burns, 500 U.S. at 493, and Buckley, 509 U.S. at 274-78). Nor do government officials have absolute immunity “for conduct involving termination, demotion and treatment of employees.” Id. at 976 (citing Forrester, 484 U.S. at 228-30, and Meek v. County of Riverside, 183 F.3d 962, 967 (9th Cir.1999)). For example, we have held that absolute immunity does not apply to a District Attorney‘s decisions to demote or fail to promote a deputy attorney, to reassign the deputy to a different department, or to bar the deputy from prosecuting any future murder cases. Ceballos v. Garcetti, 361 F.3d 1168, 1184 (9th Cir.2004), rev‘d on
Neither the Supreme Court nor this Court has considered whether claims regarding failure to train, failure to supervise, or failure to develop an office-wide policy regarding a constitutional obligation, like the one set forth in Giglio, are subject to absolute immunity. The closest we have come was in Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675 (9th Cir.1984), a case involving allegations that a supervising district attorney was “liable under
We also considered supervisory liability of a district attorney in Genzler, 410 F.3d 630. In that case, we held that, like prosecuting attorneys with direct responsibility for a case, supervisory defendants are entitled to absolute immunity for “conduct closely related to prosecutorial decisions in the trial phase of [the plaintiff‘s] case,” such as a claim “that the supervisory defendants knew that [the prosecuting attorney] had granted [a witness] immunity in exchange for perjured testimony favorable to the prosecution,” or a claim “that the supervisory defendants were aware of and condoned a ploy to use [a witness‘s] perjured testimony to force the recusal of [the plaintiff‘s] counsel of choice.” Id. at 644.
However, unlike the plaintiff in Genzler, Goldstein does not contend that Van De Kamp and Livesay are liable because they knew about, condoned, or directed any specific trial decisions made by the deputy district attorneys prosecuting Goldstein‘s criminal case. Goldstein does not, for instance, assert that Van De Kamp and Livesay knew that Fink had been granted immunity for perjured testimony in Goldstein‘s particular case, or that they condoned withholding such information from Goldstein‘s criminal defense attorney. Instead, Goldstein rests his theory of liability on Van De Kamp and Livesay‘s alleged failure to develop a policy of sharing information regarding jailhouse informants within the District Attorney‘s Office and on their alleged failure to provide adequate training and supervision on this issue.
Van De Kamp and Livesay are correct that our holding in Roe, 109 F.3d 578, establishes that absolute immunity protects not only decisions made during an individual prosecution but may also apply to a policy decision. However, they reach too broadly in urging us to apply Roe to this case. Roe concerned challenges to a policy not to prosecute cases without corroborating evidence where a particular po-
The determinative factor in Roe was that the challenged policy involved the discretionary decision of whether Roe was a credible enough witness so that prosecutors could “prosecute his cases without corroborating evidence in good conscience or with a reasonable expectation of winning a conviction. . . . This kind of witness evaluation falls entirely within a prosecutor‘s judicial function regardless of whether one case or a line of cases is at issue.” Id. at 584. Similarly, the challenged policy in Haynesworth also related to an alleged policy regarding which cases to prosecute: “Appellants aver that they were victimized by a policy of retaliatory prosecution—a practice of pursuing criminal charges against individuals who have endured wrongful arrests, solely because they refuse to waive civil suits against the arresting officers.” Haynesworth, 820 F.2d at 1247. Thus, while Roe and Haynesworth demonstrate that a policy decision may be protected by absolute immunity, the critical factor remains the nature of the challenged policy and whether it falls “within a prosecutor‘s judicial function” or, instead, is part of a prosecutor‘s exercise of administrative or investigative functions. Roe, 109 F.3d at 584.
In this case, Van De Kamp and Livesay contend that the challenged conduct was prosecutorial in function even if it may have been administrative in form. We disagree. In the context of determining whether absolute immunity applies, “prosecutorial” refers only to conduct that is “intimately associated with the judicial phase of the criminal process.” Imbler, 424 U.S. at 430. Thus, an act is not “prosecutorial” simply because it has some connection with the judicial process or may have some impact at the trial level. Were that the rule, then prosecutors would be absolutely immune from any suit because all actions taken by prosecutors arguably have some connection to the judicial process—even those, such as personnel decisions, that we have explicitly held fall outside the protections of absolute immunity. E.g., Ceballos, 361 F.3d at 1184. As the Supreme Court has cautioned, “[a]lmost any action by a prosecutor, including his or her direct participation in a purely investigative activity, could be said to be in some way related to the ultimate decision whether to prosecute, but we have never indicated that absolute immunity is that expansive.” Burns, 500 U.S. at 495.
While it may be possible for an act to be prosecutorial in function but administrative in form, we need not decide whether such conduct would be entitled to absolute immunity because we conclude that Goldstein‘s allegations are administrative and not prosecutorial in function.2 Van De Kamp and Livesay correctly argue that
IV. Conclusion
For the above reasons, we hold that the district court correctly determined that Goldstein‘s allegations against Van De Kamp and Livesay describe conduct in furtherance of an administrative rather than prosecutorial function. Van De Kamp and Livesay have therefore failed to meet their burden of demonstrating that the allegations against them are so “intimately associated with the judicial phase of the criminal process” that absolute immunity is warranted. Imbler, 424 U.S. at 430. Accordingly, the decision of the district court is AFFIRMED.