          United States Court of Appeals
                     For the First Circuit


No. 16-1186

                         VLADEK FILLER,

                      Plaintiff, Appellee,

                               v.

                          MARY KELLETT,

                      Defendant, Appellant,

 HANCOCK COUNTY; WILLIAM CLARK; WASHINGTON COUNTY; DONNIE SMITH;
     TRAVIS WILLEY; DAVID DENBOW; MICHAEL CRABTREE; TOWN OF
 GOULDSBORO, ME; TOWN OF ELLSWORTH, ME; JOHN DELEO; CHAD WILMOT;
   PAUL CAVANAUGH; STEPHEN MCFARLAND; MICHAEL POVICH; CARLETTA
          BASSANO; ESTATE OF GUY WYCOFF; LINDA GLEASON,

                           Defendants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

       [Hon. John A. Woodcock, Jr., U.S. District Judge]


                             Before

                    Lynch, Stahl, and Barron,
                         Circuit Judges.


     John S. Whitman, with whom Heidi J. Hart and Richardson,
Whitman, Large & Badger were on brief, for appellant.
     Thomas F. Hallett, with whom Timothy E. Zerillo and Hallett,
Zerillo, Whipple, P.A. were on brief, for appellee.
     Jamesa J. Drake, with whom Zachary L. Heiden and Ezekiel
Edwards were on brief, for amici curiae American Civil Liberties
Union and American Civil Liberties Union of Maine Foundation; and
Rory A. McNamara and Drake Law, LLC, on brief for amicus curiae
Maine Association of Criminal Defense Lawyers.


                         June 15, 2017
           BARRON, Circuit Judge.          This appeal arises out of the

state prosecution of Vladek Filler in 2009.              He was initially

indicted on five counts of gross sexual assault and two counts of

assault of his then-wife Ligia Arguetta Filler.           After two trials

-- and two appeals to the Maine Law Court -- he was convicted only

of one misdemeanor assault count, which he is still challenging.

In the wake of these events, Filler filed a civil action against

a number of defendants under 42 U.S.C. § 1983, including a claim

against the prosecuting attorney, then-Hancock County Assistant

District   Attorney    Mary    Kellett,      for   malicious   prosecution.

Kellett chose to challenge the suit by a 12(b)(6) motion on the

sprawling pleadings, rather than allowing for the development of

any facts or providing a defense based on the undisputed facts on

summary judgment.     Kellett now brings an interlocutory appeal from

the District Court's order denying her absolute prosecutorial

immunity from certain of Filler's claims against her.             We dismiss

the appeal for lack of jurisdiction.

                                      I.

           As only a narrow subset of the many issues involved in

this case are raised in this appeal, we recount just the relevant

facts, as set forth in Filler's 103-page Amended Complaint and the

District Court's opinion.          Because this case comes to us as an

interlocutory   appeal,       we    assume     "that   the     Plaintiff['s]

allegations regarding the Defendant['s] authority, duties, acts


                                    - 3 -
and omissions are true, and that they are sufficient to allege a

violation of federal rights."         Guzman-Rivera v. Rivera-Cruz, 55

F.3d 26, 28 (1st Cir. 1995); see also Buckley v. Fitzsimmons, 509

U.S. 259, 261 (1993) (in reviewing denial of motion to dismiss

upon   finding   no    absolute    immunity,   "we   make   two   important

assumptions about the case: first, that petitioner's allegations

are entirely true; and, second, that they allege constitutional

violations for which § 1983 provides a remedy").            Accordingly, we

recount the events at issue as the complaint presents them.

           Filler was married to Ligia Filler, now known as Isabella

L. Arguetta ("Arguetta") in 1995. Filler and Arguetta subsequently

had two children together.        In 2007, Filler initiated a separation

from Arguetta, and made plans to relocate with their children to

another state.        On April 24, 2007, Arguetta was involuntarily

hospitalized at a psychiatric facility.        She then made a series of

allegations of abuse against Filler for the purpose of gaining

custody over the children.

           Filler was arrested on April 26, 2007, without a warrant.

He was charged with gross sexual assault of Arguetta, and subject

to a number of post-arrest restrictions.         Upon arrest, Filler was

held overnight without bail.        On April 27, a bail hearing was held

and he was allowed bail.          His house remained subject to a bail

lien for the next four years.




                                    - 4 -
           Gouldsboro Police Chief Guy Wycoff threatened to arrest

Filler if Filler was released on bail and returned to his home.

Filler therefore was forced to live in a hotel from April 27, 2007

until May 1, 2007, when Filler's attorney confirmed with Wycoff

that Wycoff "had no authority nor any court order to bar or arrest

[Filler] for returning to his own house."        After returning to his

home,    Filler   remained   subject   to   a   number   of   post-arrest

restrictions, including restrictions on contact with his children,

and a curfew from 8:00 p.m. to 6:00 a.m.

           On August 8, 2007, a grand jury indicted Filler on five

counts of Class A gross sexual assault and two counts of Class D

assault.    In January 2009, after trial, Filler was convicted of

one count of Class A gross sexual assault and two misdemeanor

charges of assault on Arguetta.          The trial court subsequently

overturned the guilty verdict and ordered a new trial based upon

the trial court's finding of prosecutorial misconduct.              These

rulings were upheld by the Maine Law Court over Kellett's appeal.1

           Following the Maine Law Court's ruling, Kellett told a

local newspaper that she intended to "retry [Filler] on the three

remaining charges."    At the second trial, which took place in May

2011 and was conducted by a separate prosecutor, the jury acquitted


     1 The Maine Supreme Judicial Court sits as a court of law
("Maine Law Court") over cases on appeal from the District Court
and Superior Court, as well as a limited number of other matters.
See 4 Me. Rev. Stat. Ann. § 57.


                                 - 5 -
Filler of all counts except one count of Class D assault.           As the

District Court highlighted, after the second trial was completed,

the   Maine   Supreme      Judicial     Court    "imposed    discipline

against . . . Kellett for a number of violations of the Maine Rules

of Professional Conduct, the first disciplinary proceeding ever

filed with the Maine Supreme Judicial Court by the Overseers of

the Bar against a member of Maine's prosecutorial bar based on the

prosecutor's representation of the State."

          In the wake of these events, on February 4, 2015, Filler

filed a sprawling civil suit against eighteen separate defendants,

including Kellett.     The key allegations against Kellett that are

at issue in this interlocutory appeal arise out of Count I of the

complaint, insofar as that count asserts a claim under 42 U.S.C.

§ 1983 for malicious prosecution in violation of Filler's Fourth

Amendment rights.    The count alleges, among other things, that (1)

Kellett   suppressed    exculpatory   evidence     and   tampered    with

evidence, and (2) Kellett advised or directed law enforcement

officers not to comply with subpoenas that Filler's attorney

submitted.

          Those allegations are at issue in this appeal because,

on March 16, 2015, Kellett filed a motion to dismiss Filler's

§ 1983 claim for failure to state a claim pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure.        In that motion, Kellett

raised a number of arguments as to the allegations now at issue.


                                - 6 -
First, Kellett's motion argued that Filler was time-barred from

bringing a § 1983 claim against her arising out of much of the

conduct alleged in Count I.      Second, Kellett's motion argued that

to the extent that Filler's § 1983 malicious prosecution claim

against Kellett was based on the violation of Filler's right to

due process, whether substantive or procedural, the claim was not

cognizable.   See Albright v. Oliver, 510 U.S. 266, 271 n.4 (1994)

(holding   that   substantive   due    process     does    not   "furnish   the

constitutional    peg   on   which    to   hang"   the    tort   of   malicious

prosecution in a § 1983 claim); Trafton v. Devlin, 43 F. Supp. 2d

56, 61 (D. Me. 1999) (noting that a § 1983 claim for the violation

of procedural due process rights can exist only where, unlike here,

"no adequate 'post-deprivation remedy' is available under state

law" (quoting Pérez-Ruiz v. Crespo-Guillén, 25 F.3d 40, 42 (1st

Cir. 1994))).     Third, Kellett's motion argued that, insofar as

Filler's § 1983 claim against her was premised on the violation of

his Fourth Amendment rights, Kellett is entitled to absolute

prosecutorial immunity.       And finally, Kellett's motion contended

that Filler had failed to make a prima facie showing of the state

tort of malicious prosecution under Maine law.

           In ruling on the motion to dismiss, the District Court

concluded that Kellett was entitled to absolute immunity for her

"consideration of the evidence, her decision whether to charge the

case, what charges to present to the grand jury, and how to


                                     - 7 -
prosecutor   the   charges,"   because   these    actions   were   all

"intimately associated with the judicial phase of the criminal

process." However, the District Court denied the rest of Kellett's

motion to dismiss Count I of Filler's complaint.

          Kellett now challenges the District Court's denial of

her motion to dismiss the claim set forth in Count I.

                                II.

          Because Kellett brings an interlocutory appeal, we have

no jurisdiction over her challenges to the denial of her motion to

dismiss that do not pertain to her defense of absolute immunity

from Filler's claims under § 1983.2      See 28 U.S.C. § 1292(b);

Limone v. Condon, 372 F.3d 39, 50 (1st Cir. 2004) (noting that the

"general rule that only final judgments and orders are immediately

appealable in civil cases" permits an exception for interlocutory

review of an order rejecting an immunity defense that raises a

legal question, but this exception does not confer jurisdiction

over other contested issues in the case).        But while we do have



     2 Because our jurisdiction is limited, we do not address any
of Kellett's arguments on the merits of Filler's § 1983 suit,
including the scope of the Fourth Amendment malicious prosecution
theory. However, we note that recent cases have addressed this
theory and should provide additional guidance for district courts.
See Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 914-15 (2017)
(establishing that a claim under § 1983 for unlawful pretrial
detention is cognizable under the Fourth Amendment); Hernandez-
Cuevas v. Taylor, 723 F.3d 91 (1st Cir. 2013) (holding that a
"Fourth Amendment malicious prosecution claim" for unlawful
pretrial detention is cognizable under § 1983).


                               - 8 -
interlocutory jurisdiction over her challenge to the District

Court's      ruling   regarding   absolute     immunity,   we    have   such

jurisdiction only to the extent that her challenge turns on a

question of law rather than fact.            Hill v. Coppleson, 627 F.3d

601, 606 (7th Cir. 2010) (holding that the circuit court did not

have jurisdiction over an interlocutory appeal from the district

court's denial of summary judgment            based on an assertion of

immunity because evaluating the merits of the immunity defense

depended on the resolution of a factual dispute concerning the

prosecutor's function).

             It has been observed that absolute immunity, unlike

qualified immunity, only rarely turns on questions of fact.              See

Ellis v. Coffee Cty. Bd. of Registrars, 981 F.2d 1185, 1189 (11th

Cir. 1993) ("Absolute immunity does not depend on good faith or

reasonableness; thus [circuit courts] would be unlikely to find a

case    where    disputed   factual      questions   precluded     review."

(citation omitted)).     But, that is not always the case.       See Lawson

v. Abrams, 863 F.2d 260, 263 (2d Cir. 1988) (holding that the

district court's order allowing the filing of an amended complaint

was    not    immediately   appealable     even   though   the    defendant

prosecutors claimed absolute immunity where the plaintiff's claims

"d[id] not clearly reveal the degree to which the conduct relied

on could be considered part" of the prosecutor's function and

therefore holding that "the availability of the defense of absolute


                                   - 9 -
immunity as to these claims must await the development of facts

during discovery").      And it is not the case here.        We thus conclude

that we lack jurisdiction over this interlocutory appeal.

            To understand why, it is helpful to understand the legal

framework underlying prosecutorial absolute immunity.                  We thus

start by providing some brief background before applying the

relevant legal principles to the absolute immunity issues that

this interlocutory appeal presents.

                                      A.

            State prosecutors are entitled to absolute immunity from

liability   under   §   1983   to   the    extent   that   such   immunity   is

"necessary to protect the judicial process."               Burns v. Reed, 500

U.S. 478, 485 (1991) (citing Imbler v. Pachtman, 424 U.S. 409,

422-23 (1976)).       This reflects our "concern that harassment by

unfounded litigation would cause a deflection of the prosecutor's

energies from his public duties, and . . . would shade his

decisions   instead     of   exercising     the   independence    of   judgment

required by his public trust."             Id.    (quoting Imbler, 424 U.S.

at 423).

            Because "[a]bsolute immunity is designed to free the

judicial process from the harassment and intimidation associated

with litigation," id. at 494 (emphasis in original) (citation

omitted), "[t]hat concern . . . justifies absolute prosecutorial

immunity only for actions that are connected with the prosecutor's


                                    - 10 -
role in judicial proceedings," id.             Accordingly, a prosecutor has

absolute immunity when functioning as an "advocate" for the state

in "initiating a prosecution and in presenting the State's case,"

Imbler, 424 U.S. at 431, because that conduct is "intimately

associated with the judicial phase of the criminal process," id.

at 430.     However, a prosecutor does not receive absolute immunity

when acting "in the role of an administrator or investigative

officer."     Id. at 430-31.        Rather, "no more than a qualified

immunity is available with respect to acts of a prosecutor that

are administrative or investigative in nature."                    Lawson, 863 F.2d

at 263.

            Importantly,   absolute      immunity       does       not   necessarily

apply to all actions that a prosecutor may take once the "judicial

phase"    begins.   In   Buckley,    for       example,      the    Supreme       Court

considered whether a prosecutor enjoyed absolute immunity for

making    false   statements    during     a    press     conference       that    the

prosecutor gave announcing the return of an indictment.                     509 U.S.

at 261.     Buckley held that the prosecutor did not have absolute

immunity because (1) there was not a common-law immunity for a

prosecutor's      out-of-court      statements          to    the        press;     and

(2) comments to the press are not made in a prosecutor's role as

advocate for the state.        Id. at 277.




                                    - 11 -
             Buckley explained:

     The conduct of a press conference does not involve the
     initiation of a prosecution, the presentation of the
     state's case in court, or actions preparatory for these
     functions. Statements to the press may be an integral
     part of a prosecutor's job, and they may serve a vital
     public function. But in these respects a prosecutor is
     in no different position than other executive officials
     who deal with the press, and . . . qualified immunity is
     the norm for them.

Id. at 278 (citations omitted).             Buckley then concluded that

"[w]hen, as here, the prosecutorial function is not within the

advocate's role and there is no historical tradition of immunity

on which we can draw, our inquiry is at an end."           Id.

                                    B.

            In light of these principles, the key question in this

case concerns whether the functions that Kellett was allegedly

performing were functions for which she enjoys absolute immunity.

We begin with Kellett's assertion that she is entitled to absolute

immunity for giving legal advice to police officers regarding

Filler's subpoenas.    We then turn to Kellett's assertion that she

is entitled to absolute immunity for withholding and tampering

with exculpatory evidence (taking these allegations to be true, as

we must).

            Kellett emphasizes that "a prosecutor cannot be held

personally   liable   for   the   knowing    suppression   of    exculpatory

information" during the judicial phase, even where "prosecutors

failed to disclose exculpatory evidence specifically requested by


                                  - 12 -
the defense and where prosecutors misled the trial court in order

to conceal their failure to disclose exculpatory evidence."   Reid

v. New Hampshire, 56 F.3d 332, 336 (1st Cir. 1995) (citation

omitted).    And Kellett contends that "Filler is trying to get

around the rule of immunity for withholding exculpatory evidence

by reframing his claim as one about giving legal advice."

            Kellett's "end-run" contention, however, is too fact-

dependent for us to be able to review it at this time.   Count I of

the complaint alleges that Kellett "assumed the role of legal

counsel" to law enforcement officers, "and advised them not to

comply with lawful defense . . . subpoenas."     But, it is not at

all clear that, in advancing the assertion that Filler is merely

attempting an "end run," Kellett is presenting a legal argument

that she is entitled to absolute immunity based on the facts set

forth in the complaint, rather than a factual argument that she is

entitled to absolute immunity based on her distinct understanding

of the facts that transpired.

            Filler contends, for example, that he was involved in

civil custody and divorce proceedings at the same time as his

criminal prosecution, and he claims that he sought at least one of

the relevant subpoenas for use in the civil, rather than criminal,

proceedings, though it is not clear exactly to which subpoenas he

refers.   Yet Kellett, in contending that she has absolute immunity

for all of the legal advice and direction that Count I alleges she


                                - 13 -
gave, does not make clear what understanding she has of the

circumstances under which she gave advice regarding the subpoenas

referenced in Filler's complaint.   As a result, we find ourselves

in a situation where Filler's claims against Kellett are "not

clearly foreclosed and . . . do not clearly reveal the degree to

which the conduct relied on could be considered part of the

decision to prosecute or intimately associated with the judicial

proceedings, rather than purely investigative or administrative."

Lawson, 863 F.2d at 263.   In consequence, the "the availability of

the defense of absolute immunity as to these claims must await the

development of facts during discovery."   Id.

          Kellett does contend in this regard that, because the

advice was given after the case against Filler was initiated, she

was necessarily acting in her prosecutorial capacity and thus

entitled as a matter of law to absolute immunity.   But, as we have

noted, the fact that a prosecutor engaged in certain activities

after a prosecution had already commenced is        not necessarily

dispositive of the question whether absolute immunity attaches.

See Buckley, 509 U.S. at 278 (noting that a prosecutor is not

entitled to absolute immunity for actions taken even after the

commencement of the judicial phase if the actions "[do] not involve

the initiation of a prosecution, the presentation of the state's

case in court, or actions preparatory for these functions").




                               - 14 -
             A similar problem prevents us from reviewing Kellett's

assertion of absolute immunity as it relates to the allegations in

Count    I   that   Kellett    tampered   with   and     withheld   exculpatory

evidence.3    To be sure, Filler does argue that Kellett cannot claim

absolute immunity with respect to any of her actions implicated by

this set of allegations because these allegations concern conduct

that occurred prior to his indictment.             But, in this case, the

indictment followed the arrest.           It is thus not the only critical

point in time for purposes of determining the beginning of the

judicial phase. See Buckley, 509 U.S. at 273-74 & n.5 (emphasizing

that "[a] prosecutor neither is, nor should consider himself to

be, an advocate before he has probable cause to have anyone

arrested"     and    clarifying     that,     although     necessary   to   the

successful     assertion      of   absolute   immunity,     a   probable-cause

determination is not sufficient); Genzler v. Longanbach, 410 F.3d

630, 639 (9th Cir. 2005) ("Absolute immunity [cannot] be invoked

before probable cause was established."); Goldstein v. Moatz, 364

F.3d 205, 214–15 (4th Cir. 2004) (noting that prosecutors "do not

enjoy absolute immunity for acts committed prior to a probable


     3 In an amicus brief, the American Civil Liberties Union
("ACLU"), the ACLU of Maine Foundation, and the Maine Association
of Criminal Defense Lawyers argue that tampering with evidence is
distinguishable from withholding exculpatory evidence, and should
not be similarly entitled to absolute immunity.        The parties
themselves, however, have not briefed this issue to us. And, given
the unclear nature of the record before us, we do not address the
issue.


                                     - 15 -
cause   determination"    because    "[o]nce    a   prosecutor       possesses

probable cause, he must decide whether to prosecute, which charges

to initiate, what trial strategy to pursue, and a multitude of

other important issues that require him to exercise discretion,"

and     highlighting       that      "[i]n      a        pre–probable-cause

investigation . . . a prosecutor exercises no more discretion than

a police officer and thus should enjoy no more protection than

qualified immunity"); Hill v. City of N.Y., 45 F.3d 653, 661 (2d

Cir. 1995) ("Before any formal legal proceeding has begun and

before there is probable cause to arrest, it follows that a

prosecutor receives only qualified immunity for his acts.").

            Nevertheless, even if Kellett may have a basis for

asserting the absolute immunity defense, she does not identify

with any specificity why she is entitled to immunity with respect

to the allegations in Count I that pertain to her treatment of

evidence.     And it is by no means clear that every allegation in

Filler's    complaint   concerning   such    treatment    by   her    occurred

during the judicial rather than the investigative phase. For

example, Filler's complaint alleges that "[o]n or about April 25,

2007," -- that is, the day before Filler's arrest on April 26,

2007 -- "Kellett engaged in or supported and approved of[] the

falsification of an April 25, 2007 videotape interview of Arguetta

by Wycoff."




                                  - 16 -
          In light of the undifferentiated nature of Kellett's

assertion of absolute immunity with respect to her treatment of

evidence, it is unclear whether the parties' dispute over immunity

with respect to the allegations in Count I concerning the treatment

of potentially exculpatory evidence is a legal one about what

protection the law affords a prosecutor either before or during

the judicial phase, or instead a factual one about when the alleged

conduct occurred.

          In consequence, we also lack jurisdiction to review this

aspect of her absolute immunity defense in this interlocutory

appeal.   For, here, too, while Filler's claim against Kellett is

not "clearly foreclosed" by absolute immunity, "the availability

of the defense of absolute immunity as to these claims must await

the development of facts during discovery."    Lawson, 863 F.2d at

263; see also Hill, 45 F.3d at 663 (holding that where "immunity

issue respecting the [fabrication of videotapes] raises factual

issues that cannot be conclusively determined at this stage in the

litigation," the court "[had] no jurisdiction to entertain it").

                               III.

          For the foregoing reasons, the appeal is dismissed.




                              - 17 -
