                        NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   File Name: 12a0427n.06
                                                                                                          FILED
                                                       No. 09-6205
                                                                                                     Apr 17, 2012
                                    UNITED STATES COURT OF APPEALS                           LEONARD GREEN, Clerk
                                         FOR THE SIXTH CIRCUIT


TIMOTHY D. ROUSE,                                                       )
                                                                        )
           Plaintiff-Appellee,                                          )
                                                                        )
TERRY POWLDE, Police Officer, BENNEY                                    )
DUNCCAN, Police Officer, Fulton City Police                             )
Department, RICHARD L. MAJORS, District                                 )        On Appeal from the United
County Attorney, Fulton County Attorney                                 )        States District Court for the
Office, JAILER PARNELL,                                                 )        Western District of Kentucky
                                                                        )
           Defendants,                                                  )
v.                                                                      )                 OPINION
                                                                        )
MICHAEL B. STACY, Commonwealth                                          )
Attorney, Fulton County Circuit Court,                                  )
                                                                        )
      Defendant-Appellant.                                              )
__________________________________                                      )


Before: MC KEAGUE, ROGERS, and DONALD *, Circuit Judges.

           Donald, Circuit Judge. Plaintiff-Appellee Timothy D. Rouse filed a pro se complaint

pursuant to 42 U.S.C. § 1983 against Defendants Fulton County Police Chief Terry Powlde,1 Fulton

County police officer Benney Dunccan, Commonwealth Attorney Michael B. Stacy, Assistant

County Attorney Richard L. Majors, and Fulton County jailer Ricky Parnell.2 Rouse alleged in his

*
 At the time this case was argued, Judge Bernice B. Donald was a federal district court judge, sitting by designation.
On September 8, 2011, Judge Donald became a judge of the Sixth Circuit Court of Appeals.

1
    The record indicates that the correct spelling is “Powell.”

2
  Majors was sued in his official capacity. The remaining defendants were sued in both their individual and official
capacities. Powell, Dunccan, Majors, and Parnell settled the claims against them.
No. 09-6205
Rouse v. Powdle, et al.

complaint that while he was in jail awaiting trial prosecutor Michael Stacy directed an attack on

Rouse by his jailer for the purpose of persuading Rouse to change his plea to guilty.

       On September 25, 2008, Stacy filed a motion to dismiss. On September 28, 2009, the district

court granted the motion in part by (1) dismissing the official capacity claims against Stacy as barred

by the Eleventh Amendment and (2) dismissing without prejudice, based on Heck v. Humphrey, 512

U.S. 477 (1994), the individual capacity claim alleging that Rouse was denied a fair trial. The

district court denied the motion as to Rouse’s excessive force claim, rejecting Stacy’s assertion of

absolute immunity. On October 1, 2009, Stacy filed this appeal. We now AFFIRM the district

court’s ruling.

                                        I. BACKGROUND

       Rouse was indicted in March 2006 on charges of first-degree burglary, first-degree robbery,

and first-degree assault. Rouse v. Commonwealth, No. 2010-CA-000291-MR, 2010 WL 3362057,

at *1 (Ky. Ct. App. Aug. 27, 2010). Rouse alleges that while he was incarcerated in the Fulton

County Detention Center awaiting his August 21, 2007 trial, Stacy called the jailer on his cell phone

during a court hearing and told him that Rouse had not pled guilty, so the jailer should “do it

tonight.” Rouse states that Stacy wanted “to do his best to get Rouse to plea (sic) guilty” to the

charges against him. Around 2:00 a.m. the following morning, the jailer and two detention guards

allegedly entered Rouse’s cell, smothered him with a pillow, “busted his face” against an intercom,

and choked him with a string. While walking out of Rouse’s cell, the jailer told Rouse that next time

he should plead guilty.



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       During the first day of trial, Rouse changed his plea to guilty as part of a plea agreement with

Stacy. Rouse, 2010 WL 3362057, at *1. Prior to sentencing, Rouse moved to withdraw his guilty

plea on the grounds that he was unaware that the violent offender probation and parole restrictions

would require him to serve at least 85% of his sentence if he pled guilty. Id. at *1 n.3; Rouse v.

Commonwealth, No. 2007-CA-002020-MR, 2008 WL 4092869, at *1 (Ky. Ct. App. Sept. 5, 2008),

cert. denied, 130 S. Ct. 120 (2009). The trial court denied Rouse’s motion to withdraw his guilty

plea and sentenced him to 27 years in prison in accordance with the plea agreement. Rouse, 2008

WL 4092869, at *2. The Kentucky Court of Appeals affirmed the denial of the motion. Id.

                                          II. ANALYSIS

A. STANDARD OF REVIEW

       To the extent that it turns on an issue of law, a district court's denial of a claim of immunity,

whether qualified or absolute, is immediately appealable. Mitchell v. Forsyth, 472 U.S. 511, 525,

530 (1985); Archie v. Lanier, 95 F.3d 438, 442 (6th Cir. 1996). The denial of a motion to dismiss

based on absolute immunity is subject to de novo review. Koubriti v. Convertino, 593 F.3d 459, 466

(6th Cir. 2010); Barnes v. Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997).

B. THE SCOPE OF PROSECUTORIAL IMMMUNITY

       Although prosecutorial immunity has a longstanding tradition in the common law, the Imbler

v. Pachtman decision was the Supreme Court’s first explicit recognition that prosecutors enjoy

absolute immunity from § 1983 suits for damages when they act within the scope of their

prosecutorial duties. 424 U.S. 409, 420 (1976). Derivative of the immunity afforded judges, this

prosecutorial, or “quasi-judicial,” immunity has been revisited and refined in numerous Court

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opinions in the thirty-five years since Imbler. The Imbler Court emphasized that prosecutorial

immunity is not predicated upon status, titles, or special regard for a particular branch of

government. Imbler, 424 U.S. at 420. It is based, rather, on public policy considerations, particularly

the concern that “harassment by unfounded litigation would cause a deflection of the prosecutor’s

energies from his public duties, and the possibility that he would shade his decision instead of

exercising the independence of judgment required by his public trust.” Id. at 423. In a later decision,

the Court expressed the rationale supporting such immunity as follows:

        As public servants, the prosecutor and the judge represent the interest of society as
        a whole. The conduct of their official duties may adversely affect a wide variety of
        different individuals, each of whom may be a potential source of future controversy.
        The societal interest in providing such public officials with the maximum ability to
        deal fearlessly and impartially with the public at large has long been recognized as
        an acceptable justification for official immunity.

Ferri v. Ackerman 444 U.S. 193, 202-03 (1979).

        The Court has recognized, however, that the granting of such immunity is not without its

costs, noting that “unfairness and injustice to a litigant may result on occasion.” Mireles v. Waco,

502 U.S. 9, 10 (1991) (citing Bradley v. Fisher, 80 U.S. 335, 347 (1872)). This downside risk is

mitigated, according to the Court, by “[v]arious post-trial procedures . . . to determine whether an

accused has received a fair trial,” including “the remedial powers of the trial judge, appellate review,

and state and federal post-conviction collateral remedies.” Imbler, 424 U.S. at 427. The Court has

also emphasized that there remain effective checks on misconduct by prosecutors, notwithstanding

their immunity from civil suits, including criminal prosecution and professional discipline. Burns

v. Reed, 500 U.S. 478, 486 (1991) (citing Imbler, 424 U.S. at 429).


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       In view of the risk of injustice, the Supreme Court has been “quite sparing” in its recognition

of the doctrine of absolute immunity, and it has declined to extend it any “further than its

justification would warrant.” Id. at 486 (citing Harlow v. Fitzgerald, 457 U.S. 800, 811 (1982)).

The Court has further constrained the reach of the doctrine in its ruling that “[t]he official seeking

absolute immunity bears the burden of showing that such immunity is justified for the function in

question.” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (citing Burns, 500 U.S. at 486).

       In delineating the scope of its holding, the Imbler Court focused on whether the prosecutor’s

activities at issue “were functions to which the reasons for absolute immunity apply with full force.”

Imbler, 424 U.S. at 430. The Court found that prosecutorial immunity shielded a prosecutor from

suit under § 1983 for conduct in “initiating a prosecution and in presenting the State’s case,” so long

as that conduct is “intimately associated with the judicial phase of the criminal process.” Id. at 430,

431. The Court expressly declined to decide whether absolute immunity should also apply to other

functions, such as “those aspects of the prosecutor’s responsibility that cast him in the role of an

administrator or investigative officer.” Id. at 430-31. This emphasis on function has guided the

Court’s discussion of absolute immunity in the many cases that have followed.

       In Burns, the Court reexamined the issue of immunity for prosecutorial investigations. 500

U.S. at 486 (1991). Burns “made explicit the point [the Court] had reserved in Imbler: A

prosecutor’s administrative duties and those investigatory functions that do not relate to an

advocate’s preparation for the initiation of a prosecution or for judicial proceedings are not entitled

to absolute immunity.” Buckley, 509 U.S. at 273 (citing Burns, 500 U.S. at 494-96). The Court

determined that absolute immunity did not apply to a prosecutor giving legal advice to police, on

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grounds that there was no historical or common-law support for extending absolute immunity in such

cases. Burns, 500 U.S. at 492. Applying the functional approach it had developed in Imbler, the

Court declared that advising police in the investigative phase of a criminal case was not “intimately

associated with the judicial phase of the criminal process.” Id. at 493. In reaching this conclusion,

the Court underscored the rationale underlying the absolute immunity doctrine, as well as its limits:

        [It] is not merely a generalized concern with interference with an official's duties, but
        rather is a concern with interference with the conduct closely related to the judicial
        process. Absolute immunity is designed to free the judicial process from the
        harassment and intimidation associated with litigation. That concern therefore
        justifies absolute prosecutorial immunity only for actions that are connected with the
        prosecutor's role in judicial proceedings, not for every litigation-inducing conduct.

Id. at 494 (internal citations omitted) (emphasis in original).

        Similarly, in Buckley the Court determined that a prosecutor was not entitled to absolute

immunity for his alleged misconduct in a criminal investigation or for false statements made to the

media during a public announcement of the indictment. 509 U.S. at 273. Central to the Court’s

analysis of the former was the “difference between the advocate’s role in evaluating evidence and

interviewing witnesses as he prepares for trial . . . and the detective’s role in searching for the clues

and corroboration that might give him probable cause to recommend that a suspect be arrested.” Id.

Echoing the Burns observation quoted above, the Court stated, “When a prosecutor performs the

investigative functions normally performed by a detective or police officer, it is ‘neither appropriate

nor justifiable that for the same act, immunity should protect the one and not the other.’” Id.

(quoting Hampton v. Chicago, 484 F.2d 602, 608 (7th Cir. 1973)). And “[w]hen the functions of

prosecutors and detectives are the same, as they were here, the immunity that protects them is also


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the same.” Id. at 276. Further, the prosecutor was not entitled to absolute immunity for his actions

at the press conference because he was not acting as an advocate, there was no historical tradition

of immunity for this function, and qualified immunity would provide sufficient protection. Id. at

277-78.

        The Court also applied the Imbler functional analysis in a case addressing whether the

prosecutor was acting as a witness or as an advocate when she executed an affidavit under penalty

of perjury. Kalina v. Fletcher, 522 U.S. 118 (1997). The plaintiff alleged that the prosecutor made

false statements of fact in an affidavit supporting an application for an arrest warrant. Id. at 129.

The Court noted that the prosecutor was not required to provide the affidavit and that ethics and

tradition instruct that counsel should avoid acting as both an advocate and a witness in the same

proceeding. Id. at 129-30. The Court concluded that the prosecutor was not entitled to absolute

immunity for performing the function of a witness. Id. at 131.

        The Supreme Court’s most recent analysis of prosecutorial immunity came in Van de Kamp

v. Goldstein, 555 U.S. 335 (2009). The plaintiff alleged that prosecutors violated his civil rights by

failing to engage in the administrative activities of instituting and adequately supervising a system

of information-sharing about informants. Id. at 339, 342. This failure allegedly resulted in a Giglio3

violation at the plaintiff’s criminal trial. Id. The Court held that, while administrative in nature, the

obligations at issue “necessarily require legal knowledge and the exercise of related discretion,” are




3
 Giglio v. United States, 405 U.S. 150 (1972) (requiring disclosure of promises made to government witness for their
cooperation).

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“intimately associated with the judicial phase of the criminal process,” and, therefore, warrant

absolute immunity for the prosecutors. Id. at 862-64.

                                            *****
        The Imbler functional analysis, combined with the Court’s various holdings on specific

prosecutorial functions described above, provides a proper foundation for determining whether the

facts of the present case support a finding of prosecutorial immunity. The factual allegations at issue

are:4

        While awaiting trail5 (prosecutor) Mike Stacey had the jailer to assault Rouse, and
        intimidate his defense witnesses, to prevent them from testifying at trail.

                                                       ***

        During a hearing at the court house Defendant Stacey called Jailer Parnell on his cell
        phone and said “Plaintiff did not plea guilty, so do it tonight.” The same night
        around about 2: am the jailer and two unknown detention guards came into Plaintiff
        cell while he was sleep and smutter him with a pillow, busted his face on a speaker
        intercom inside the cell, and tied a string around his throat chocking Plaintiff until
        he cried leaving him soacked in blood. While the jailer was walking out and said
        next time plea guilty.

                                                       ***

        Defendant Stacey called the jailer on his cell phone from the court house and had the
        jailer to use “force” in order to make Plaintiff plead guilty. Defendant Stacey told the
        jailer, Rouse didn’t plead guilty so do it tonight. The same night around 2 am the
        jailer and two unknown guards came into Rouse’s cell, tied a string aound his neach,
        chocking him until he cried, busted his face on a intercom, smuttering him with a
        pillow and leaving him soacked in blood. On their way out of cell, jailer said next
        time “plead guilty.”

4
 The allegations come from the complaint, pretrial memorandum, and the memorandum in support of the pretrial
memorandum, respectively.

5
 Rouse’s handwritten statements, replete with unusual spellings, are presented here as faithfully to the original as
practicable.

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       In his response to these allegations, Stacy, invoking Imbler, declares that his alleged conduct

was part of “negotiating a plea agreement.” Because plea bargaining is a “quasi-judicial” function,

Stacy argues, he is absolutely immune from suit for his alleged actions, however “illegal and

reprehensible” they may have been.

       In Rouse’s brief, contrary to his own statements in the complaint and pretrial memoranda,

he asserts that the facts indicate that Stacy ordered the assault on him as punishment for past

behavior. Rouse further argues that even if the assault was intended to induce a guilty plea, it would

still not constitute protected plea bargaining.        Finally, Rouse asserts that, although formal

categorization is unnecessary, Stacy’s actions should be deemed “administrative, investigative or

other function,” rather than prosecutorial advocacy.

       We first reject out of hand any characterization of Stacy’s conduct as either investigative or

administrative. There is no allegation in the record that Stacy was “investigating” anything in having

Rouse beaten. And while punishment or discipline of a prison inmate might be deemed an

administrative function of a prison warden, it is not an administrative function of a prosecutor. If

he did in fact engage in either punishment or discipline, he was not performing the administrative

duties of a prosecutor, but rather was acting entirely outside the scope of the duties of a prosecutor.

       Furthermore, it would be inappropriate here to engage in “judicial scrutiny of the motives for

the prosecutor’s actions.” Ireland v. Tunis, 113 F.3d 1435, 1447 (6th Cir. 1997); Robison v. Via, 821

F.2d 913, 920 (2d Cir. 1987) (In “the realm of absolute immunity . . . evaluation of motive and

reasonableness is forbidden.”). “[A] judicial act ‘does not become less judicial by virtue of an

allegation of malice or corruption of motive.’” Mireles v. Waco, 502 U.S. 9, 13 (1991) (quoting

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Forrester v. White, 484 U.S. 219, 227 (1988). The converse of this maxim must also be true: an act

does not become more judicial by claiming a worthy motive. Because “[i]t is the nature of the

function performed . . . that inform[s] our immunity analysis,” we decline to ponder the motive

behind the alleged assault and battery. Forrester, 484 U.S. at 229.6 Whether the act was meant to

punish Rouse or to persuade him to change his plea, “we look to the [act’s] relation to a general

function normally performed by a [prosecutor]” to determine the applicability of prosecutorial

immunity. Mireles, 502 U.S. at 13.

        Stacy claims that the alleged assault was part of plea bargaining, a recognized prosecutorial

function. Rouse asserts that it was not. This deceptively simple disagreement represents the core

issue in this appeal.

C. PROSECUTORIAL IMMUNITY AND PLEA BARGAINING

        This Court and others have applied the Imbler functional approach to prosecutorial immunity

in a number of cases involving plea bargaining. The resulting body of case law, without exception,

expresses the principle that plea bargains are “so intimately associated with the prosecutor’s role as

an advocate of the State in the judicial process as to warrant absolute immunity.” Cady v. Arenac

County, 574 F.3d 334, 341 (6th Cir. 2009); See also Cole v. Smith, 1999 WL 685940, at *2 (6th Cir.

Aug. 24, 1999) (“The plea bargain takes the place of a trial. Conduct associated with plea bargaining

is clearly not administrative or investigative.”); Doe v. Phillips, 81 F.3d 1204, 1210 (2d Cir. 1996)


6
 The dissent devotes considerable space to Rouse’s allegations that Stacy’s intent was to persuade him to change his
plea to guilty. W e note that Rouse’s statements about the thoughts and intentions of Stacy are not facts but mere
speculation, warranting no particular regard by the Court. More importantly, as the case law cited throughout this
discussion establishes, the prosecutor’s motives play no part in an immunity analysis.

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No. 09-6205
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(“[T]he negotiation of a plea bargain is an act within a prosecutor’s jurisdiction as a judicial

officer.”); Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1492 (10th Cir. 1991); Taylor v.

Kavanagh, 640 F.2d 450, 453 (2d Cir. 1981) (“[A] prosecutor’s activities in the plea bargaining

context merit the protection of absolute immunity. The plea negotiation is an ‘essential component’

of our system of criminal justice.”). Thus, it is beyond question that a prosecutor’s plea bargaining

activities, regardless of motive, warrant absolute immunity.

       But merely attaching the label of “plea bargaining” to a prosecutor’s actions does not by itself

end the immunity inquiry. There are established limits to the application of prosecutorial immunity,

and these limits are pertinent to plea bargaining as well as other prosecutorial functions. The

Supreme Court has long recognized that such immunity does not protect a prosecutor for actions

clearly beyond his authority. Spalding v. Vilas, 161 U.S. 483, 498 (1896); see also Stump v.

Sparkman, 435 U.S. 349, 357 (1978) (holding that an official has no absolute immunity when he has

acted in the “clear absence of all jurisdiction”). As the Second Circuit has observed, “where a

prosecutor acts without any colorable claim of authority, he loses the absolute immunity he would

otherwise enjoy.” Barr v. Abrams, 810 F.2d 358, 361 (2d Cir. 1987). Otherwise, a prosecutor could

immunize himself from suit for any manner of wrongdoing by merely claiming that it was “related”

to a legitimate prosecutorial duty.

       A number of courts have wrestled with prosecutorial misconduct similar to that alleged in

this case and have found such conduct outside the scope of a prosecutor’s legitimate duties. In Doe

v. Phillips, the Second Circuit confronted a claim of prosecutorial immunity involving a demand by

a prosecutor that the accused swear to her innocence on a bible in a church as a condition of

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dropping charges that she had sexually abused her son. 81 F.3d 1204 (2d Cir. 1996), cert. denied,

520 U.S. 1115 (1997). Similar to the present case, the prosecutor argued that his decisions and

actions in disposing of the charges against the defendant “were integrally related to the judicial phase

of the prosecution of the pending criminal charges” and “should therefore be afforded absolute

prosecutorial immunity.” Doe v. Phillips, 1995 WL 17202518, Appellant Br. at 1 (2d Cir. October

9, 1995). The court rejected the prosecutor’s framing of the issues and held that the prosecutor’s

plea bargaining conduct was not protected by prosecutorial immunity.

        The court’s reasoning in Phillips is instructive. In a prior case, Schloss v. Bouse, the Second

Circuit had recognized that absolute immunity extends to a prosecutor’s offer to forgo prosecution

in exchange for certain types of concessions by the defendant. 876 F.2d 287, 292-93 (2d Cir. 1989).

In that case, a prosecutor had offered the defendants an agreement not to prosecute in return for the

execution of releases in favor of various municipal entities. Id. The court held that “the demand for

releases and the threat to prosecute were interdependent” and the demand was not “foreign to the

prosecutor’s office.” Id. at 291-92. This plea bargain was, therefore, within the prosecutor’s

jurisdiction and protected by prosecutorial immunity. Id. at 292.

        The Phillips court contrasted the facts before it with those presented in Schloss and

determined that “the intertwined conduct was the demand for a religious oath on a bible in a church.”

Phillips, 81 F.3d at 1210. Because a governmental official has no authority to require a religious act,

the court concluded that the prosecutor’s demand “was manifestly beyond his authority,” and was

thererfore not protected by prosecutorial immunity. Id. at 1211. Although the conduct at issue was

plainly related to a plea bargain of sorts, the court rejected the notion that a prosecutor “may with

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impunity couple a threat of prosecution with all manner of demands, for example, demands for

bribes or sexual favors. A government official does not have absolute immunity for acts that are

manifestly or palpably beyond his authority, . . . or performed in the clear absence of all jurisdiction.”

Id. at 1210. “If the prosecutor has acted without any colorable claim of authority . . . his conduct is

not protected by absolute immunity.” Id.

        Thus, while fully embracing the functional approach of Imbler, as well as the general

principle that “the negotiation of a plea bargain is an act within a prosecutor’s jurisdiction as a

judicial officer” protected by absolute immunity, the court distinguished between a prosecutor’s

negotiated exchange based upon legitimate prosecutorial authority and an exchange without any such

basis. This principled distinction provides a compelling basis upon which to analyze the facts of the

present case.

        Assume, for the sake of argument, that the alleged assault and battery of Rouse was, in the

view of the prosecutor, a direct extension of his frustrated efforts to secure a guilty plea from Rouse,

and that his sole purpose in ordering the beating was to persuade Rouse to change his plea. The

bargain at issue would then be properly characterized as follows: the prosecutor would refrain from

further beating in exchange for Rouse’s entering a plea of guilty. Just as the prosecutor in Phillips

lacked any authority to bargain for the defendant’s committing a religious act (or sexual act or

payment of money), prosecutor Stacy had no authority to use as a bargaining tool the threat of

repeated beatings. From this light, it is clear that Rouse’s beating cannot be viewed as immunized

conduct because, although it clearly related to plea bargaining, it is not conduct within the scope of

Stacy’s legitimate prosecutorial “jurisdiction.”

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       Alternatively, if the purpose of the beating, as Rouse belatedly claims in his brief, was to

punish Rouse for failing to plead guilty in the past rather than to influence his future behavior, the

case for prosecutorial immunity has even less merit, as the dissent acknowledges. The Eighth and

Ninth Circuits have dealt most extensively with prosecutorial conduct of a punitive nature. In Price

v. Moody, the plaintiff alleged that the prosecutor personally ordered him jailed in a dirty cell

“without lights, ventilation, a mattress or a blanket,” “infested with roaches and bugs,” and without

food, water or showers during a four day period. 677 F.2d 676, 676-77 (8th Cir. 1982). The Eighth

Circuit held that “it can hardly be asserted that [the] charged actions were within the scope of

prosecutorial duties. . . [A] prosecutor has no power or authority to order a prisoner to be subjected

to barbaric treatment.” Id. at 678; See also Phillips v. Kiser, 2006 WL 721818 (8th Cir. Mar. 23,

2006) (finding that allegations that prosecutor ordered defendant transferred and placed in solitary

confinement to punish him were not subject to absolute immunity); Gobel v. Maricopa County, 867

F.2d 1201, 1206 (9th Cir. 1989) (“prosecutors are not entitled to absolute immunity on the claim that

they illegally punished [defendants] during their post-arrest detention”); Smith v. Updegraff, 744

F.2d 1354, 1364 (8th Cir. 1984)(holding that ordering confinement of defendant under barbaric

conditions was outside the scope of prosecutorial duties). The foregoing body of case law can be

summarized as holding, in the language of Imbler, that the function of punishment is not protected

prosecutorial conduct because it is not “intimately associated with the judicial phase of the criminal

process.” 424 U.S. at 431. Alternatively, in the language of Phillips, it is unprotected because

punishment is “manifestly or palpably beyond [the prosecutor’s] authority, . . . performed in the clear

absence of all jurisdiction.” 81 F.3d at 1210.

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        Ultimately, it is of no consequence whether the beating of Rouse is more accurately described

as punitive or coercive. Regardless of its characterization, and regardless of whether we accept that

Stacy’s conduct was “related” to plea bargaining, by any objective view of the matter Stacy was not

acting within the legitimate scope of his prosecutorial authority or jurisdiction in ordering the beating

of Rouse. He therefore has no valid claim to prosecutorial immunity.

        Stacy’s brief does not address the above cases limiting the application of prosecutorial

immunity, but calls the court’s attention instead to the Supreme Court’s Mireles v. Waco decision

as dispositive of his claims on appeal. In Mireles, a summary reversal of the lower court rendered

per curiam without briefing or argument, the Court held that a judge was absolutely immune from

suit for allegedly ordering police officers to use excessive force to bring an attorney to court on

grounds that the judge’s actions were taken in his judicial capacity. 502 U.S. 9 (1991). Stacy argues

that “[j]ust as the judge in Mireles was performing a judicial function, Michael B. Stacy was

performing a prosecutorial function in seeking to induce Mr. Rouse to plead guilty to the charges

against him.” Stacy concludes, therefore, that “prosecutorial immunity attaches to his action of

allegedly directing the jailer.”

        The Mireles Court explained that “[a] judge’s direction to court officers to bring a person

who is in the courthouse before him is a function normally performed by a judge.” Mireles, 502 U.S.

at 12. If the judge “authorized and ratified the police officers’ use of excessive force, he acted in

excess of his authority.” Id. at 13. Nevertheless, the “nature of the function performed” was

“judicial” and was therefore within his capacity as a judge and within his jurisdiction. Id. “If

judicial immunity means anything, it means that a judge ‘will not be deprived of immunity because

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the action he took was in error . . . or was in excess of his authority.’” Id. at 12-13 (quoting Stump

v. Sparkman, 435 U.S. 349, 356 (1978).

       The Mireles analysis might be summarized, in its most concise form, as follows:

               Function: directing court officers to bring a person before judge.

               Nature of the function: judicial, because normally performed by
               judge.

               Manner in which function was performed: irrelevant, even if
               improper, because a judicial function is immune from suit regardless
               of the manner performed.

       Stacy would have the Court find, applying a parallel formulation, that his act was part of the

negotiation of Rouse’s plea, undeniably a “general function normally performed” by a prosecutor.

In other words:

               Function: plea negotiation.

               Nature of the function: prosecutorial, because normally performed
               by prosecutor.

               Manner in which function was performed: irrelevant, even if
               improper, because a prosecutorial function is immune from suit
               regardless of the manner performed.

       What is amiss about this application of the Mireles analytical structure is that in place of an

objective description of the function performed is a mere label, at best describing alleged intent but

not the actual function performed. As previously discussed, it is not the court’s proper role to inquire

into the motives behind the prosecutor’s actions. Ireland v. Tunis, 113 F.3d 1435, 1447 (6th Cir.

1997). The court looks only to the objective nature of the act itself. Viewed objectively, without



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regard to allegations of motive or intent, the function at issue is the prosecutor’s ordering the beating

of the defendant.

        We need not labor over the precise characterization of the nature of this function. It suffices

to recognize the obvious: that ordering a beating is not a function normally performed by a

prosecutor. Thus, the present case would be more aptly summarized as follows:

                Function: Directing jailers to beat defendant.

                Nature of the function: non-prosecutorial, because not normally
                performed by prosecutor.

                Manner in which function was performed: potentially relevant,
                because function is not immune from civil suit.

        Negotiating a plea is certainly among a prosecutor’s most general functions. If, however, a

prosecutor attempts to influence the outcome of those negotiations by engaging in separate non-

prosecutorial functions, he abandons any claim to the immunity which would otherwise attach to the

performance of his duties.

        It is certainly likely that beating a defendant would influence the outcome of plea

negotiations, but so might beating his wife, kidnapping his children, or burning a cross on his lawn.

The fact that a non-prosecutorial action influences plea bargaining does not make the action itself

plea bargaining. Attaching a plea bargaining label to such conduct is insufficient to warrant

prosecutorial immunity when such conduct is plainly outside of the prosecutor’s legitimate authority.

        Altering the facts somewhat from Mireles to make it more closely resemble the present case

further underscores the flaw in Stacy’s immunity claim. Consider the following fictitious scenario:

a judge is frustrated with a witness at trial. The witness is disrespectful of the judge and generally

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No. 09-6205
Rouse v. Powdle, et al.

belligerent and uncooperative. The witness’s testimony is to continue the next day, so, as a

precaution, the judge hires a couple of thugs to go to the witness’s house and rough him up with the

warning that “he better behave himself tomorrow.” The witness sues the judge, and the judge claims

immunity from suit on grounds that he was acting in his judicial capacity by maintaining order in his

courtroom, a function normally performed by a judge.

         The problem with the judge’s immunity claim in this far-fetched hypothetical is the same

problem presented by Stacy’s claim: although the act was intended to impact an area within his

judicial capacity, maintaining order in the courtroom, the judge acted “without any colorable claim

of authority” in ordering thugs to batter the witness. This is not a function normally performed by

a judge. His conduct would thus not be protected by absolute immunity.7

         It is equally revealing to alter the facts of the present case to make it more directly parallel

to Mireles. Consider a prosecutor in the heat of face-to-face plea negotiations with a defendant.

Exasperated by the defendant’s stubbornness, the prosecutor reaches across the table and grabs the

defendant out of his seat by the collar, curses at him and yells in a rage, “Do you hear what I’m

saying?! You’re gonna lose. You’re gonna rot in jail! You’re gonna grow old and die there, never

see your kids grow up, never be with your wife again . . . if you don’t take the deal I’m offering you,”

then throws him to the floor. Such behavior would be a deplorable, demoralizing abuse of the

prosecutor’s authority, potentially subject to professional sanction and even criminal prosecution.

7
  An even simpler alteration would be to assume that the judge in Mireles merely ordered the attorney beaten by the
officers, to “teach him a lesson.” The outcome would be the same as in this more complicated hypothetical: the function
becomes “ordering the lawyer beaten.” Even though the judge might perhaps argue his motive was “promoting
appropriate respect for the court,” the bottom line is that the objective function at issue is the beating of a lawyer, which
is not judicial in nature and therefore not protected by absolute immunity.

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Rouse v. Powdle, et al.

The abusive conduct described is, however, performed in the course of plea negotiations, a function

normally performed by a prosecutor, in which a prosecutor offers concessions regarding the charges

brought against the defendant in return for a guilty plea. Consequently, under the functional scheme

set forth in Imbler and applying the reasoning of both Phillips and Mireles, the prosecutor’s improper

actions are unquestionably protected by absolute immunity from civil suit.

        This distinction between acting in a prosecutorial capacity but in excess of authority, on the

one hand, and acting “without any colorable claim of authority,” on the other, may appear nebulous

when expressed in the abstract. When, however, it is applied to the facts of Mireles, to the above

hypotheticals, or to the present case, the distinction is both clear and eminently workable. The

ordering of a brutal, late-night beating of a sleeping prisoner in his cell by three prison guards outside

of the presence of anyone remotely involved in negotiating a plea, for whatever reason, is not the

exercise of simple misjudgment or excessive zeal in the performance of a prosecutor’s normal duties,

which would be shielded by the doctrine of prosecutorial immunity. If he engaged in such conduct,

Stacy abandoned any claim of prosecutorial authority and with it the immunity that accompanies

such authority.

                                         III. CONCLUSION

        In the Philips and Mireles decisions, the Second Circuit and the Supreme Court, respectively,

provided useful, closely-related frameworks for solving the prosecutorial immunity puzzle which

this case presents. Under Phillips, we look to whether the prosecutor acted within his legitimate

authority when he “plea bargained” with the threat of a brutal beating as a bargaining chip. Under

Mireles, we look to the objective nature of the function at issue to determine whether the conduct

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No. 09-6205
Rouse v. Powdle, et al.

was “prosecutorial.” Both of these methodologies lead to the conclusion that the prosecutor in this

case has no valid claim to absolute immunity for the alleged beating of the defendant. “Officials

who seek exemption from personal liability have the burden of showing that such an exemption is

justified by overriding considerations of public policy,” Forrester v. White, 484 U.S. 219, 224

(1988), and Stacy has not met this burden. To attach absolute immunity to his alleged actions would

be to extend the doctrine much “further than its justification would warrant.” Burns v. Reed, 500

U.S. 478, 486 (1991).

        With this decision, the Court reaffirms its commitment to the broad policy interests favoring

prosecutorial discretion as articulated in Imbler and its progeny, declining only to shield conduct,

such as that alleged here, that is distinctly contrary to the principles set forth in the established case

law. The district court’s denial of Defendant’s Motion to Dismiss on prosecutorial immunity

grounds is AFFIRMED.




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Rouse v. Powdle, et al.

        McKEAGUE, Circuit Judge, dissenting. I must respectfully dissent from the majority

because I find that the prosecutor’s actions, however egregious, are protected by absolute immunity

because they were performed in the course of plea bargaining, a role intimately associated with the

prosecutor’s role as an advocate of the State.

        As the majority acknowledges, the absolute immunity analysis turns on the function

performed, not the act itself. See Mireles v. Waco, 502 U.S. 9, 13 (1991) (“[T]he relevant inquiry

is the ‘nature’ and ‘function’ of the act, not the ‘act itself.’”) (quoting Stump v. Sparkman, 435 U.S.

349, 362 (1978). We agree that the functions protected are those “intimately associated with the

judicial phase of the criminal process”—those, in other words, where the prosecutor acts as an

advocate of the State. See Imbler v. Pachtman, 424 U.S. 409, 430, 431 n.33 (1976); Buckley v.

Fitzsimmons, 509 U.S. 259, 272-73 (1993). Finally, we agree that plea bargaining falls within the

protected prosecutorial function of advocating for the State. Cady v. Arenac Cnty., 574 F.3d 334,

341 (6th Cir. 2009) (“Conduct associated with plea bargains has long been held by this court to be

‘so intimately associated with the prosecutor’s role as an advocate of the State in the judicial process

as to warrant absolute immunity.’”) (quoting Cole v. Smith, No. 97-5964, 1999 WL 685940, at *2

(6th Cir. Aug. 24, 1999) (unpublished)).

        Notwithstanding the foregoing, the majority then promptly looks to the misconduct itself,

rather than the function performed, to determine that absolute immunity does not lie. In doing so,

the majority relies on non-binding authority from the Second Circuit while contravening the well-

established, binding principles set out by the Supreme Court. The majority reasons that the

prosecutor’s action here is not immune because it went beyond the “legitimate scope of his

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No. 09-6205
Rouse v. Powdle, et al.

prosecutorial authority or jurisdiction,” as “ordering a beating is not a function normally performed

by a prosecutor.” That ordering a beating is outside a prosecutor’s legitimate authority and not

normally performed by a prosecutor is undoubtedly true but so is suborning false testimony,

fabricating evidence, and threatening witnesses—prosecutorial abuses which have all been held

absolutely immune from civil damages liability because the function of the activities was within the

prosecutor’s role as an advocate of the State. See Imbler, 424 U.S. at 413, 430 (granting absolute

immunity to prosecutor who allegedly knowingly used false testimony and suppressed material

evidence at trial); see Beckett v. Ford, 384 F. App’x 435, 451–52 (6th Cir. 2010) (finding the

prosecutor absolutely immune from claims that he threatened witnesses, knowingly presented false

testimony, and framed the plaintiff for murder); Heidelberg v. Hammer, 577 F.2d 429, 433 (7th Cir.

1978) (finding claims that prosecutors destroyed and falsified evidence and suborned perjury barred

by absolute immunity). As our sister circuit has aptly stated, “[I]mmunity that applies only when the

defendant did no wrong is no immunity at all.” Millspaugh v. Cnty. Dep’t of Pub. Welfare of

Wabash Cnty., 937 F.2d 1172, 1175 (7th Cir. 1991).

       Thus, I find this case squarely controlled by Mireles v. Waco, 502 U.S. 9 (1991). While the

judge’s act in that case—ordering police officers “to forcibly and with excessive force seize and

bring plaintiff into his courtroom”—exceeded his judicial authority, the Court reiterated that the

immunity inquiry must focus on the function and not the act. Mireles, 502 U.S. at 10. Otherwise,

absolute immunity becomes no immunity at all:

       [I]f only the particular act in question were to be scrutinized, then any mistake of a
       judge in excess of his authority would become a “nonjudicial” act, because an
       improper or erroneous act cannot be said to be normally performed by a judge. If

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No. 09-6205
Rouse v. Powdle, et al.

           judicial immunity means anything, it means that a judge “will not be deprived of
           immunity because the action he took was in error . . . or was in excess of his
           authority.

Id. at 12-13 (quoting Stump v. Sparkman, 435 U.S. 349, 356 (1978)) (omission in original).

Accordingly, the Court focused on the function performed by the judge—directing police officers

to bring counsel in a pending case before the court—and determined that such function was taken

in the judge’s judicial capacity and thus protected by judicial immunity. Id.; see also Ashelman v.

Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (reversing two of its prior decisions that “construed the

immunity doctrines too narrowly by focusing on underlying actions instead of looking to ultimate

acts.”).

           The proper question then, according to Mireles, is whether action taken for the purpose of

procuring a plea is a prosecutorial function “intimately associated with the judicial phase of the

criminal process” that warrants absolute immunity. Imbler, 424 U.S. at 430. The answer is a well-

established yes. See, e.g., Cady, 574 F.3d at 341; Powers v. Zimmerman, No. 96-6434, 1997 WL

704944, at *1 (6th Cir. Nov. 6, 1997) (unpublished) (holding that a prosecutor was absolutely

immune to a claim that he maliciously brought a rape charge to force the plaintiff to plead guilty to

an unrelated charge); see also Bresko v. John, 87 F. App’x 800, 803 (3d Cir. 2004) (holding that a

prosecutor’s decisions regarding plea bargains are entitled to absolute immunity); Pinaud v. Cnty.

of Suffolk, 52 F.3d 1139, 1149 (2d Cir. 1995) (holding that absolute immunity barred claims that a

prosecutor made false representations to prompt a plea agreement and then breached the agreement);

Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1492 (10th Cir. 1991) (holding that state attorneys

were absolutely immune from claims that they engaged in coercive plea bargaining by threatening

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No. 09-6205
Rouse v. Powdle, et al.

to file sexual assault charges against a physician if he did not agree to give up his medical practice);

Briley v. California, 564 F.2d 849, 856 (9th Cir. 1977) (“[P]rosecutorial immunity extends to the

process of plea bargaining as an integral part of the judicial process.”) (internal quotation marks and

citation omitted).

        The majority’s argument that the use of excessive force is not prosecutorial activity is no

different from the argument rejected in Mireles, that a judge’s use of excessive force is not “judicial

activity.” The majority’s argument is, in fact, directly in line with Justice Stevens’ dissent in

Mireles, where he opined that judicial immunity should not attach. He reasoned, “Ordering a battery

has no relation to a function normally performed by a judge,” which reasoning was rejected by the

majority. Mireles, 502 U.S. at 14 (Stevens, J., dissenting).

        For the same reason, the majority’s reliance on Doe v. Phillips, 81 F.3d 1204 (2d Cir. 1996),

is unpersuasive. There, the Second Circuit majority also focused on the prosecutor’s act itself (the

demand for a religious oath on a Bible) rather than the function of act (setting conditions for ending

a prosecution). The dissent pointed out the fallacy in the majority’s reasoning:

        The majority thus poses a question to which there can be one answer: Is compelling
        a defendant to participate in a “religious ceremony” a prosecutorial function? That
        inquiry, however, conflates a generic function of a prosecutor (taking a statement
        under oath) with the aspect of that conduct which is alleged to be unconstitutional
        (taking that statement in a church, on a Bible, etc.). That is not the approach we have
        employed in previous cases. In Dory [v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994)], we did
        not ask whether suborning perjury was “properly within the role of a prosecutor”; we
        held that that inquiry was “immaterial.” In Pinaud [v. County of Suffolk, 52 F.3d
        1139 (2d Cir. 1995)], we did not ask whether it was a prosecutorial function to
        dissemble and confect false charges. And in Schloss [v. Bouse, 876 F.2d 287 (2d Cir.
        1989)], we did not ask whether procuring releases from civil liability was a
        prosecutorial act. In each of these cases, we asked whether the underlying conduct
        was related to the prosecutorial function—and granted absolute immunity if it was,

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No. 09-6205
Rouse v. Powdle, et al.

        whether or not the misconduct was egregious. By focusing on the nature of the
        misconduct in this case, the majority opinion erroneously qualifies absolute
        immunity.

Doe, 81 F.3d at 1214 (Jacobs, J., dissenting).

        The majority here likewise focuses on the misconduct at issue and proffers a similarly

misdirected question: Is ordering a beating a function normally performed by a prosecutor? Of

course not, but the proper question is whether alleged misconduct was related to a prosecutorial

function—i.e., was the prosecutor, regardless of the egregiousness of the act, advocating for the

State? This immunity in no way countenances prosecutorial misconduct but simply recognizes that

the cost of ensuring “the vigorous and fearless performance of the prosecutor’s duty that is essential

to the proper functioning of the criminal justice system” is that “the genuinely wronged defendant”

will be “without civil redress against a prosecutor whose malicious or dishonest action deprives him

of liberty.”8 Imbler, 424 U.S. at 427-28.

        Of course, absolute immunity, despite its name, does not apply in every situation. “[A] judge

is not immune for actions, though judicial in nature, taken in the complete absence of all

jurisdiction.” Mireles, 502 U.S. at 12 (internal citations omitted). Further, “a judge is not immune

from liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity.” Id. at

11 (internal citations omitted). Similarly, prosecutors may not avail themselves of absolute


8
 The lack of civil redress does not mean the lack of other forms of relief. Defendants have available
various post-conviction procedures in which to challenge the fairness of their trial or voluntariness
of their plea. Here, Rouse did, in fact, seek to withdraw his guilty plea in trial court and on appeal.
He challenged the voluntariness of his plea claiming not that Stacy coerced it but that he was not
informed of the probation restrictions applicable to his sentence. Rouse v. Kentucky, No.
2007-CA-002020-MR, 2008 WL 4092869, at *1 (Ky. Ct. App. Sept. 5, 2008).

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No. 09-6205
Rouse v. Powdle, et al.

immunity for actions not prosecutorial in nature. Adams v. Hanson, 656 F.3d 397, 402 (6th Cir.

2011) (“[A]bsolute immunity protects ‘only . . . actions that are connected with the prosecutor’s role

in judicial proceedings, not . . . every litigation-inducing conduct.’”) (omissions in original) (quoting

Burns v. Reed, 500 U.S. 478, 483 n.2, 494 (1991)).

        The majority attempts to wedge its case here, finding that ordering a beating is simply not

“prosecutorial” and that Stacy cannot cure the non-prosecutorial nature of his conduct by affixing

the label of “plea bargaining” onto it. The problem is that Rouse himself affixed such label, claiming

that Stacy beat him in order to procure a guilty plea, and, in considering a motion to dismiss, we take

the plaintiff at his word. E.g., Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 613 (6th Cir. 2009)

(“But there is no reason not to grant a motion to dismiss where the undisputed facts conclusively

establish an affirmative defense as a matter of law.”); U.S. Gypsum Co. v. Indiana Gas Co., Inc., 350

F.3d 623, 626 (7th Cir. 2003) (“A litigant may plead itself out of court by alleging (and thus

admitting) the ingredients of a defense.”). The majority contends that Rouse’s statements about

Stacy’s thoughts and intentions are not facts but mere speculation, which warrant no particular regard

by this Court. The majority would be correct if we were dealing with a complaint not specific

enough, rather than too specific. Here, if Rouse proved his case exactly as he presented it, he would

be foreclosed from recovery, and we are under no obligation to save his complaint by contradicting

his allegations. See NicSand, Inc. v. 3M Co., 507 F.3d 442, 458 (6th Cir. 2007) (“When the

complaint itself gives reasons to doubt plaintiff’s theory, and when later pleadings confirm those

doubts, it is not our task [under Rule 12(b)(6)] to resuscitate the claim but to put it to rest. Nothing

prevents a plaintiff from pleading itself out of court . . . .”) (internal quotation marks and citation

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No. 09-6205
Rouse v. Powdle, et al.

omitted); Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008) (“A plaintiff pleads himself

out of court when it would be necessary to contradict the complaint in order to prevail on the

merits.”) (internal quotation marks and citation omitted).

       Rouse’s complaint and subsequent amendments are therefore dispositive. This case would

be a different one had Rouse alleged that he was beaten in retaliation for pleading guilty. Then, the

alleged beating would have no “relation to a general function normally performed” by a prosecutor,

Mireles, 502 U.S. at 13, because a prosecutor has no role in meting out punishment. See, e.g., Gobel

v. Maricopa Cnty., 867 F.2d 1201, 1206 (9th Cir. 1989) (“The prosecutors are not entitled to

absolute immunity on the claim that they illegally punished [plaintiffs] during their post-arrest

detention, because such conduct is not intimately associated with the judicial phase of the criminal

process and has nothing to do with a prosecutor’s role as an advocate.”), abrogated on other grounds

as stated in Merritt v. Cnty. of Los Angeles, 875 F.2d 765, 769 (9th Cir. 1989). Even had Rouse

pleaded only that he was beaten, without specifying for what purpose, the liberal construction that

we afford to the pleadings of pro se litigants, Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999),

and requirement to construe all facts in the light most favorable to the plaintiff at the motion to

dismiss stage, Logsdon v. Hains, 492 F.3d 334, 340 (6th Cir. 2007), would allow us to draw the

reasonable inference that the alleged assault was ordered for no prosecutorial purpose. But Rouse

specifically and repeatedly alleged that Stacy ordered the beating for the purpose of inducing him

to plead guilty, which begins and ends his case.

       The majority, however, finds Rouse’s complaint beside the point. See maj. op. at 14

(“Ultimately, it is of no consequence whether the beating of Rouse is more accurately described as

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No. 09-6205
Rouse v. Powdle, et al.

punitive or coercive.”). It finds that, regardless of the label affixed to Stacy’s act, Stacy acted

“manifestly or palpably beyond [his] authority” and “in the clear absence of all jurisdiction.” Maj.

op. at 12 (quoting Doe, 81 F.3d at 1210). In other words, the majority reasons that there comes a

point at which conduct cannot be considered “plea bargaining” at all.

        As stated above, I agree that absolute prosecutorial immunity has limits. At some point, a

prosecutor’s misconduct may cross from advocating the State’s case (however outrageously) to

personal vendetta. It was on such grounds that Doe’s dissent distinguished demands for bribes or

sexual favors, misconduct that it agreed “would be unsheltered by absolute immunity.” 81 F.3d at

1214 (Jacobs, J., dissenting) (“These acts of misconduct—which serve purely personal interests

without an alloy of a public function—differ in kind from the misconduct that is protected by

absolute immunity. There is a difference between performing one’s office, however disgracefully,

and offering to sell it for a purely personal benefit.”). It is the “alloy of a public function” on which

the analysis turns and which decides this case. See Adams v. Hanson, 656 F.3d 397, 403 (6th Cir.

2011) (“The analytical key to prosecutorial immunity, therefore, is advocacy—whether the actions

in question are those of an advocate.”) (emphasis in original) (quoting Hollaway v. Brush, 220 F.3d

767, 775 (6th Cir. 2000) (en banc)). While a less specific complaint might have given rise to an

inference that the alleged beating was merely a personal power trip or meted out as punishment, the

complaint leads us to but one conclusion—that Stacy was acting as an advocate of the State.

        Taking the allegations in Rouse’s complaint as true, the only reasonable inference is that the

alleged assault was perpetrated for the purpose of procuring a plea bargain. Once that is established,

it follows that Stacy’s actions are protected by absolute prosecutorial immunity under the holding

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Rouse v. Powdle, et al.

and reasoning of Mireles. Thus, I respectfully dissent.




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