                                                                              FILED
                            NOT FOR PUBLICATION                                DEC 10 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

JEFFREY J. MCCABE,                               No. 08-17264

             Plaintiff - Appellant,              D.C. No. 1:03-cv-05298-OWW-
                                                 SMS
  v.

PATRICK J. HART; RONALD L.                       MEMORANDUM *
CALHOUN; THE COUNTY OF KINGS
CA.,

             Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Oliver W. Wanger, District Judge, Presiding

                     Argued and Submitted December 3, 2009
                            San Francisco, California

Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.

       Jeffrey J. McCabe appeals the district court’s grant of summary judgment in

his 42 U.S.C. § 1983 action. We affirm. Because the parties are familiar with the

factual and procedural history of this case, we need not recount it here.


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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                                           I

      The district court correctly held that the claims founded on the filing of the

complaint by prosecutor Hart were barred by the doctrine of absolute immunity.

Absolute prosecutorial immunity covers “acts undertaken by a prosecutor in

preparing . . . for trial,” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993),

including “[f]iling charges and initiating prosecution.” Mishler v. Clift, 191 F.3d

998, 1008 (9th Cir. 1999). McCabe argues that Hart acted outside the scope of

absolute immunity when he (a) drafted a complaint charging McCabe with

voluntary manslaughter; (b) verified the complaint upon information and belief;

and (c) signed the complaint under penalty of perjury, even though he was not

required to do so under California law.

      However, our case law dictates otherwise. In Mishler, we held that absolute

immunity covered a medical board secretary’s act of signing a disciplinary

complaint upon information and belief and under penalty of perjury to indicate his

belief that the charged physician had committed the acts alleged. Id. at 1008-09.

We concluded that “[t]he mere use of the terms ‘under penalty of perjury’ in the

disciplinary complaint does not turn [the secretary] into a complaining witness.”

Id. at 1009. Accordingly, Hart’s actions fall within the scope of absolute immunity.




                                          2
      The Supreme Court’s holding in Kalina v. Fletcher, 522 U.S. 118 (1997),

does not compel a different result. In Kalina, the Supreme Court held that absolute

immunity did not shield a prosecutor who allegedly made “false statements of fact

in an affidavit supporting an application for an arrest warrant.” 522 U.S. at 120,

129-31; see also Cruz v. Kauai County, 279 F.3d 1064, 1067 (9th Cir. 2002)

(denying absolute immunity to a prosecutor who “stepped . . . into the role of

witness, when he personally attested to the truth of the facts in [an] affidavit”).

However, the complaint in this case did not set forth any factual circumstances or

testimony. In signing the complaint upon information and belief, Hart thus did not

“personally attest[]” to any facts. See Kalina, 522 U.S. at 129-30.

                                           II

      The district court also properly dismissed McCabe’s Fourth Amendment

claims. When reviewing summary judgment rulings, “[w]e may affirm on any

ground supported by the record.” Bleisner v. Commc’n Workers of Am., 464 F.3d

910, 913 (9th Cir. 2006). Assuming, without deciding, that a seizure occurred in

this case, Hart was entitled to qualified immunity on the claim. Even if we were to

construe language in Karam v. City of Burbank, 352 F.3d 1188, 1193 (9th Cir.

2003) and Justice Ginsburg’s concurrence in Albright v. Oliver, 510 U.S. 266,

276-81 (1994) to hold that a seizure occurred by virtue of the filing of a felony


                                           3
complaint–an issue we do not reach–Hart is still protected by qualified immunity.

The contours of the holding in Karam are not entirely defined as to the

significance, by itself, of the felony charge. Further, our sister circuits are not in

accord. Compare Gallo v. City of Phila., 161 F.3d 217, 222-24 & n.7 (3d Cir.

1998) and Murphy v. Lynn, 118 F.3d 938, 945 (2d Cir. 1997) with Bielanski v.

County of Kane, 550 F.3d 632, 638-40 (7th Cir. 2008) and Riley v. Dorton, 115

F.3d 1159, 1162 (4th Cir. 1997).

      A state actor is entitled to qualified immunity when the applicable

constitutional law has not been clearly established. Pearson v. Callahan, 555 U.S.

----, ----, 129 S.Ct. 808, 822 (2009). Here, the status of law both in this Circuit and

in others was not sufficiently clearly established at the time of the incident so as to

put Hart on notice that the filing of a felony complaint alone might be construed as

constituting a seizure. Therefore, although we decline to reach the question of

whether a seizure occurred in this instance, qualified immunity affords Hart

protection because the law was not clearly established.




      AFFIRMED.




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