                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 09a0268p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                   X
                                                    -
 ROBERT WARD CADY,
                                                    -
                                 Plaintiff-Appellant,
                                                    -
                                                    -
                                                        No. 08-1795
            v.
                                                    ,
                                                     >
                                                    -
                                                    -
 ARENAC COUNTY and CURTIS G.
                                                    -
 BROUGHTON, individually and in his official
                                                    -
 capacity as Arenac County Prosecutor,
                         Defendants-Appellees. -
                                                   N
                     Appeal from the United States District Court
                   for the Eastern District of Michigan at Bay City.
                No. 07-11369—Thomas L. Ludington, District Judge.
                                    Argued: March 13, 2009
                               Decided and Filed: July 30, 2009
                                                                                               *
      Before: MARTIN and GILMAN, Circuit Judges; ZOUHARY, District Judge.

                                      _________________

                                           COUNSEL
ARGUED: Russell C. Babcock, THE MASTROMARCO FIRM, Saginaw, Michigan,
for Appellant. Jason David Kolkema, JOHNSON, ROSATI, LABARGE, ASELTYNE
& FIELD, P.G., Lansing, Michigan, for Appellees. ON BRIEF: Russell C. Babcock,
Victor Joseph Mastromarco, Jr., THE MASTROMARCO FIRM, Saginaw, Michigan,
for Appellant. Jason David Kolkema, JOHNSON, ROSATI, LABARGE, ASELTYNE
& FIELD, P.G., Lansing, Michigan, for Appellees.
       GILMAN, J., delivered the opinion of the court, in which ZOUHARY, D. J.,
joined. MARTIN, J. (pp. 16-21), delivered a separate concurring opinion.




        *
           The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,
sitting by designation.


                                                  1
No. 08-1795        Cady v. Arenac County, et al.                                  Page 2


                                 _________________

                                      OPINION
                                 _________________

       RONALD LEE GILMAN, Circuit Judge. This case raises the question of
whether Robert Ward Cady’s constitutional rights were violated when the Arenac
County Prosecutor required Cady, as a condition for dismissing the criminal assault and
battery charges pending against him, to enter into an agreement to temporarily refrain
from filing a civil lawsuit against the parties with whom he had had a physical
altercation. The district court granted summary judgment in favor of both Arenac
County and the Arenac County Prosecutor, concluding that the prosecutor’s actions were
protected by absolute prosecutorial immunity. Although we do not fully agree with the
district court’s analysis, we AFFIRM its judgment for the reasons set forth below.

                                 I. BACKGROUND

A.     Factual background

       On the evening of September 4, 2004, police officers were dispatched to the
property of Robert Seaman in response to a call claiming that a person was being
restrained after he was observed breaking into vehicles. Seaman was having a Labor
Day party that evening at his residence. The officers arrived to find Cady being assisted
in getting up from the ground. According to the police report, the officers received
conflicting accounts about what had taken place. Cady first claimed that he was hit by
a water balloon coming from the Seaman property as he drove by and that, when he
sought to investigate, individuals from the Seamans’ party assaulted him. He then
changed his story and claimed that he stopped at what he believed was a friend’s house
and that individuals “jumped him.” The officer interviewing Cady noted that Cady
emitted “the odor of intoxicants.” This caused the officer to administer a breathalyzer
test, which showed that Cady had a blood-alcohol level of 0.101.

       In contrast, the four individuals at the Seamans’ Labor Day party (Robert
Seaman, Marcia Seaman, Scott Diebold, and Thomas Kolczynski) told the police that
No. 08-1795        Cady v. Arenac County, et al.                                     Page 3


Cady came onto the Seaman property and assaulted Robert Seaman. After Robert called
out for help, the other three at the party came to assist him. They restrained Cady until
the police arrived. A fifth individual, Robert Dewar, told one of the officers that while
Cady was being held down, he saw Diebold punching Cady in the head “about five
times.” The police then re-interviewed Diebold, a corrections officer based in New
York, and further questioned his account of the events. They ultimately discredited
Dewar’s story and told him to leave the property because he “was getting everyone
excited.” Several of the individuals involved, including Cady, appeared to have injuries.
During his deposition, Assistant Prosecutor Vollbach described Cady as having gotten
“the worst of the tussle.”

       After the officers evaluated these conflicting accounts, Cady was arrested and
taken into custody. He spent the night in jail and was released the following afternoon,
having been issued a citation and charged on a “weekend warrant” with two state
misdemeanor counts of assault and battery.

       In April 2005, Cady entered into a Deferred Prosecution Agreement (DPA) with
Assistant Prosecutor Vollbach, which provided in pertinent part as follows:

         The Defendant, Robert Ward Cady, voluntarily and understandably
         agrees to the dismissal of the current charges pending against him:
         two counts of Assault and Battery, subject to the following
         conditions:
         1.      During the next six (6) months, I will demonstrate my desire
         to live within the law by not violating any statute of the State of
         Michigan requiring criminal intent.
         2.     During the next six (6) months, I will not be arrested for any
         criminal acts or traffic violations more serious than a civil infraction.
         3.      If Defendant Cady pursues any civil claims or remedies
         against the victims or other participants pertaining to the incidents
         relative to this matter, People will reissue charges.
         I, Robert Ward Cady, agree to the above terms and conditions and
         understand that if I violate any of the terms of this agreement during
         the next six (6) months, the Prosecution will re-issue the current
         charges pending against me.
No. 08-1795        Cady v. Arenac County, et al.                                  Page 4


       Cady signed the DPA, but later claimed that he did so “with the understanding
that the provision was unconstitutional.” He did not, however, communicate this belief
to the Arenac County Prosecutor’s Office. Assistant Prosecutor Vollbach acknowledged
during his deposition that the Prosecutor’s Office had never before executed a DPA
containing similar waiver-of-civil-claims language, but said that he had done so to allow
a six-month “cooling-off” period between the parties to the altercation.

       Less than five months later, Cady nonetheless filed a civil lawsuit against the
Seamans, Diebold, and Kolzcynski in the county circuit court. The complaint alleged
assault, battery, and negligence arising out of the events of September 4, 2004. Upon
learning of the civil lawsuit, Arenac County Prosecutor Curtis Broughton and Assistant
Prosecutor Vollbach decided to reissue the criminal charges against Cady. Cady pled
not guilty, and was ultimately acquitted by a jury on all charges.

B.     Procedural history

       In March 2007, Cady filed a claim pursuant to 42 U.S.C. § 1983 against Arenac
County and County Prosecutor Broughton in the United States District Court for the
Eastern District of Michigan. The complaint alleged that the defendants violated Cady’s
constitutional rights under the Petition Clause of the First Amendment by including the
waiver-of-civil-claims language in the DPA.

       After discovery was completed, the district court heard oral arguments relating
to the defendants’ Motion for Dismissal and Summary Judgment. It later issued a
memorandum opinion in favor of both defendants. The court found that because
Broughton is a “policymaker with final decision-making authority,” Cady had stated a
claim that met the requirements for suing Arenac County as set forth in Pembaur v. City
of Cincinnati, 475 U.S. 469 (1986). It also concluded that, based upon the factors laid
out in Justice O’Connor’s concurring opinion in Town of Newton v. Rumery, 480 U.S.
386 (1987), and substantially adopted by the Sixth Circuit in Coughlen v. Coots, 5 F.3d
970 (6th Cir. 1993), the DPA’s release-dismissal provision did not serve the public
interest and was unenforceable due to “prosecutorial overreaching.”
No. 08-1795          Cady v. Arenac County, et al.                                Page 5


          Nonetheless, the district court held that Cady’s claim was barred by absolute
prosecutorial immunity. The court identified the following three acts of the prosecutor
as being challenged by Cady: (1) the issuance of charges against Cady, (2) the inclusion
of the waiver-of-civil-claims language in the DPA, and (3) the prosecution of Cady.
Citing Imbler v. Pachtman, 424 U.S. 409 (1976), the court concluded that all three acts
are subject to absolute prosecutorial immunity, a doctrine that protects prosecutors from
claims brought under 42 U.S.C. § 1983. The court therefore granted summary judgment
in favor of both defendants and dismissed Cady’s complaint. Cady timely appealed.

                                     II. ANALYSIS

A.        Standard of review

          We review de novo a district court’s grant of summary judgment. Allen v.
Highlands Hosp. Corp., 545 F.3d 387, 393 (6th Cir. 2008). Summary judgment is
proper where no genuine issue of material fact exists and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). In considering a motion for
summary judgment, the district court must construe all reasonable inferences in favor of
the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986).      The central issue is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986).

B.        Immunity issues

          “An absolute immunity defeats a suit at the outset, so long as the official’s
actions were within the scope of the immunity.” Imbler, 424 U.S. at 419 n.13. If
absolute immunity applies to the defendants, we do not need to reach the substantive
issues such as whether the DPA is unenforceable under the factors set out in Rumery.
See Imbler, 424 U.S. at 419 n.13. Because Cady brought suit against County Prosecutor
Broughton in both his individual and official capacities, we will separately analyze the
issue of whether this immunity applies to Broughton in his individual capacity, to
No. 08-1795         Cady v. Arenac County, et al.                                     Page 6


Broughton in his official capacity, and to Arenac County. “Whether absolute immunity
protects a defendant from liability under 42 U.S.C. § 1983 is a legal question that this
Court reviews de novo.” Gregory v. City of Louisville, 444 F.3d 725, 737 (6th Cir.
2006) (citation omitted).

        a.      Broughton in his individual capacity

        The Supreme Court in Imbler held that “a state prosecuting attorney who acted
within the scope of his duties in initiating and pursuing a criminal prosecution” was not
amenable to suit under § 1983. 424 U.S. at 410. This rationale, however, did not extend
to a prosecutor whose “responsibility . . . cast him in the role of an administrator or
investigative officer rather than that of advocate.” Id. at 430-31.

        The district court identified three types of actions taken by the prosecutor:
(1) the issuance of charges against Cady, (2) actions connected with the DPA, and
(3) the prosecution of Cady at trial. Under Imbler, the issuance of charges against Cady
and the prosecution of those charges clearly fall “within the scope of [the prosecutor’s]
duties in initiating and pursuing a criminal prosecution.” See id. at 430; see also Burns
v. Reed, 500 U.S. 478, 490-91 (1991). This leaves the key question of whether
Broughton’s actions in connection with the waiver-of-civil-claims language in the DPA
also fall within the scope of his duties as an advocate. No case within this circuit has
decided that question.

        “[P]rosecutors are absolutely immune from liability under § 1983 for their
conduct . . . insofar as that conduct is intimately associated with the judicial phase of the
criminal process.” Burns, 500 U.S. at 486 (citation and internal quotation marks
omitted). “Since the [Supreme] Court’s decision in Imbler, courts have taken a
functional approach to absolute immunity.” Spurlock v. Thompson, 330 F.3d 791, 797
(6th Cir. 2003).         “The analytical key to prosecutorial immunity . . . is
advocacy—whether the actions in question are those of an advocate.” Skinner v.
Govorchin, 463 F.3d 518, 525 (6th Cir. 2006) (citations and internal quotation marks
omitted). “If the challenged actions of the prosecutor were not performed in his role as
No. 08-1795         Cady v. Arenac County, et al.                                     Page 7


advocate, if they do not relate to an advocate’s preparation for the initiation of a
prosecution or for judicial proceedings, then only qualified immunity applies.” Id.

        But courts will bar § 1983 suits arising out of even unquestionably illegal or
improper conduct by the prosecutor so long as the general nature of the action in
question is part of the normal duties of a prosecutor. Imbler, 424 U.S. at 413, 430
(holding that a prosecutor accused of knowingly presenting false testimony at trial is
protected by absolute immunity); Jones v. Shankland, 800 F.2d 77, 80 (6th Cir. 1986)
(holding that a prosecutor’s alleged “use of perjured testimony[,] the non-disclosure of
exculpatory information[,] . . . conflict of interest problems [,] and . . . spy allegations”
are all “related to the acts of an advocate and thus come within the area of prosecutorial
immunity”); Heidelberg v. Hammer, 577 F.2d 429, 432 (7th Cir. 1978) (holding that a
prosecutor is absolutely immune from a suit claiming that he destroyed and falsified
evidence).

        In its order granting summary judgment, the district court concluded that the use
of the DPA was itself “integral to the judicial process of adjudicating Plaintiff’s guilt or
innocence.” The court based its conclusion on the fact that a Michigan statute grants the
county court the authority to permit such “release-dismissal agreements” and to grant the
prosecution’s motion for a nolle prosequi. See Mich. Comp. Laws § 771.1(2). This
analysis, however, strikes us as inapposite insofar as it focuses on the action and
authority of the county court rather than the conduct of the county prosecutor.

        No Sixth Circuit case squarely addresses the question of whether entering into
a release-dismissal agreement like the DPA in the present case is conduct “intimately
associated with the judicial phase of the criminal process.” But numerous cases from
this circuit, following the analysis of the Supreme Court in Rumery, have established the
validity of release-dismissal agreements as “legitimate criminal justice tools.” Rumery,
480 U.S. at 393 (holding that the release-dismissal agreement entered into by the
plaintiff and the prosecution was enforceable); see also MacBoyle v. City of Parma, 383
F.3d 456, 461 (6th Cir. 2004) (same); Coughlen v. Coots, 5 F.3d 970, 975 (6th Cir. 1993)
No. 08-1795         Cady v. Arenac County, et al.                                    Page 8


(“Rumery indicates that under ordinary circumstances it is not improper for prosecutors
to obtain releases as a part of a . . . dismissal of criminal charges.”).

        The Rumery factors, as adopted by the Sixth Circuit, require courts to consider,
among other things, whether a release-dismissal agreement “was executed under judicial
supervision.” Rumery, 480 U.S. at 401-02 (O’Connor, J., concurring); Burke v.
Johnson, 167 F.3d 276, 285 (6th Cir. 1999) (holding that a release-dismissal agreement
“executed under judicial supervision” counted in favor of the agreement’s enforceability
(citation and internal quotation marks omitted)). Although these cases are concerned
with whether a release-dismissal agreement is enforceable, their conclusions indicate
that entering into such an agreement with a criminal defendant is one way in which a
prosecutor may choose to resolve a case in his “role as advocate” for the state.

        Moreover, the DPA in this case bears a resemblance to plea bargains that
prosecutors routinely enter into with criminal defendants. 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. Cole v. Smith, No. 97-5964, 1999 U.S. App. LEXIS 20353, at *6
(6th Cir. Aug. 24, 1999); see also Roberts v. Johnson, No. 86-5952, 1987 U.S. App.
LEXIS 2308, at *2-3 (6th Cir. Feb. 17, 1987) (holding that actions taken in connection
with a plea bargain were “taken within the scope of the prosecutor’s duties” and
therefore subject to absolute immunity); Doe v. Phillips, 81 F.3d 1204, 1210 (2d Cir.
1996) (“[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) (holding that absolute immunity attaches to plea bargaining activity “due to its
intimate association with the judicial process”).

        In the instant case, the DPA was followed by Assistant Prosecutor Vollbach’s
motion for nolle prosequi. At least one other circuit has held that a decision to move for
nolle prosequi is within the bounds of absolute immunity. Brooks v. George County, 84
F.3d 157, 168 (5th Cir. 1996) (holding that a prosecutor’s act “of requesting that the
court enter an order of nolle prosequi” of the defendant’s criminal charges was
No. 08-1795           Cady v. Arenac County, et al.                                  Page 9


“intimately associated with the judicial phase of the criminal process” (citation and
internal quotation marks omitted)). But Cady argues that County Prosecutor Broughton
should not receive absolute immunity because Broughton was not carrying out his duty
as a prosecutor when he authorized Assistant Prosecutor Vollbach to enter into the DPA.
Cady insists that Broughton was instead “improperly acting solely as the advocate for
the alleged victims (and not the state).” As the line of absolute-immunity cases make
clear, however, a prosecutor’s allegedly improper motive alone is not enough to defeat
absolute immunity, so long as the general nature of his actions falls within the scope of
his duties as an advocate for the state. This is particularly true here, where Cady is
challenging only one provision of the DPA, not the document as a whole. Nor did Cady
present any proof that Broughton had any personal motives to benefit the Seamans or
their relatives, or refute Broughton’s contention that the purpose of the DPA’s release-
dismissal provision was simply to provide a six-month “cooling off” period between the
parties.

           Cady has pointed to no authority, in this circuit or elsewhere, that supports his
contention that a prosecutor’s actions in connection with the negotiation and entry of a
release-dismissal agreement is outside the scope of a prosecutor’s role as an advocate.
The defendants, on the other hand, have persuasively argued that County Prosecutor
Broughton’s actions in connection with the DPA should be covered by absolute
immunity.

           Absolute immunity “defeats the suit at the outset.” Imbler, 424 U.S. at 419 n.13.
This leaves us with no need to reach the issue of whether County Prosecutor Broughton
in his individual capacity violated Cady’s First Amendment rights. The district court
therefore properly granted summary judgment with respect to Cady’s claim against
Broughton in the latter’s individual capacity.
No. 08-1795          Cady v. Arenac County, et al.                                 Page 10


        b.      Broughton in his official capacity

        “In an official capacity action, the plaintiff seeks damages not from the individual
officer, but from the entity for which the officer is an agent.” Pusey v. City of
Youngstown, 11 F.3d 652, 657 (6th Cir. 1993). “[A]n official capacity suit is, in all
respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham,
473 U.S. 159, 166 (1985). Indeed, there is caselaw suggesting that a lawsuit against an
officer in his official capacity and against the governmental entity, such as a city, are
functionally the same and should therefore be subjected to the same analysis. See, e.g.,
Almonte v. City of Long Beach, 478 F.3d 100, 106 (2d Cir. 2007) (explaining that “an
official-capacity claim is in substance a claim against the municipality”). We believe,
however, that Cady’s claims against County Prosecutor Broughton and against Arenac
County should be analyzed separately for the sake of clarity. The immunity issue in this
subsection is therefore limited to a discussion of the claim against Broughton in his
official capacity.

        Absolute immunity is a personal defense that is unavailable in an official-
capacity action. Graham, 473 U.S. at 166-67. Contrary to the district court’s analysis,
therefore, County Prosecutor Broughton is not entitled to absolute prosecutorial
immunity in his official capacity. “The only immunities that can be claimed in an
official-capacity action are forms of sovereign immunity that the entity, qua entity, may
possess, such as the Eleventh Amendment.” Id. at 167. Both sides have apparently
considered Broughton solely as an employee of Arenac County. The defendants, in
particular, never put forth an argument that Broughton was functioning as an agent of
the state—and is thus entitled to sovereign immunity—in his dealings with Cady. We
nonetheless conclude that Broughton was in fact acting as an agent of the state and that
Cady’s suit against him in his official capacity is barred by the Eleventh Amendment.

        The Eleventh Amendment bars § 1983 suits against a state, its agencies, and its
officials sued in their official capacities for damages. Graham, 473 U.S. at 169.
Whether a county prosecutor is deemed a “state official” depends, at least in part, on
state law. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)
No. 08-1795        Cady v. Arenac County, et al.                                  Page 11


(holding that whether an entity should be treated as “an arm of the State” rather than as
a municipal corporation “depends, at least in part, upon the nature of the entity created
by state law”). This court in Pusey, for example, held that city prosecutors are
considered state officials under Ohio law when they “are responsible for prosecuting
state criminal charges.” 11 F.3d at 657. “Thus, a city official pursues her duties as a
state agent when enforcing state law or policy.” Id.

       The facts of this case are essentially the same as in Pusey. Under Michigan law,
county prosecuting attorneys are charged with the duty of “appear[ing] for the state or
county, and prosecute or defend . . . all prosecutions, suits, applications and motions,
whether civil or criminal, in which the state or county may be a party or interested.”
Mich. Comp. Laws § 49.153 (2008). This formulation indicates that county attorneys
in Michigan, like their counterparts in Ohio, are responsible for enforcing criminal laws
on behalf of the state. In the instant case, Cady was charged with and prosecuted for two
counts of assault and battery under Michigan Compiled Laws § 750.81(1), a part of the
state penal code. We have previously determined that state criminal law represents the
policy of the state. Pusey, 11 F.3d at 657. This means that County Prosecutor
Broughton was acting “as a state agent when prosecuting state criminal charges.” See
id. Cady’s suit against Broughton in his official capacity should therefore be treated as
a suit against the state. See Graham, 473 U.S. at 167.

       Our concurring colleague believes, however, that Pusey is distinguishable from
the present case. Relying on Brotherton v. Cleveland, 173 F.3d 552 (6th Cir. 1999), the
concurring opinion concludes that because County Prosecutor Broughton was not
“rotely” enforcing state law when he entered into the DPA, he was not acting as an arm
of the state. See id. at 566. We respectfully disagree.

       Brotherton held that a local coroner’s implementation of a cornea-removal policy
that was not mandated by state law belied his contention that he was acting as an arm of
the state. The Brotherton court explained that when considering whether a contested
policy is state policy, the essential question is the degree of discretion possessed by the
official in question in implementing the contested policy. Id.       But the language of
No. 08-1795         Cady v. Arenac County, et al.                                  Page 12


Brotherton makes clear that the “essential question” of discretion applies only to policy
choices and not to individual acts by the official in enforcing state law.

        The reason for this distinction is that even in “rote” enforcement actions, a
prosecutor must make a myriad of choices, such as “whether to prosecute, what targets
of prosecution to select, what investigative powers to utilize, what sanctions to seek, plea
bargains to strike, or immunities to grant.” Erikson v. Pawnee County Bd. of County
Comm’rs, 263 F.3d 1151, 1154 (10th Cir. 2001) (citation and internal quotation marks
omitted). If any of these decisions negated “state action” simply because the prosecutor
could have “act[ed] differently, or not at all,” see Brotherton, 173 F.3d at 566, then very
few prosecutorial actions would be considered “state action.” Such a position is not
supported by Brotherton or by other caselaw. See id. (citing with approval several cases,
including Pusey, that held that local officials had acted as state agents when they
enforced state statutes).

        This case concerns a single action—the decision to enter into the DPA—by
County Prosecutor Broughton. A widespread “policy” is not implicated here. As the
concurrence points out, the DPA was the first and only such agreement ever entered into
by the county prosecutor’s office. The question, therefore, is not whether Broughton
could have resolved the case in another manner, but whether the DPA was carried out
as part of his prosecutorial duties in enforcing state law.

        We conclude that the situation here is analogous to a plea bargain, which has
long been considered to be one of the “critical prosecutorial decisions.” See Erikson,
263 F.3d at 1154; see also Santobello v. New York, 404 U.S. 257, 260 (1971) (“[T]he
disposition of criminal charges by agreement between the prosecutor and the accused,
sometimes loosely called ‘plea bargaining,’ is an essential component of the
administration of justice.”). Prosecutor Broughton had determined, pursuant to his duty
as a state prosecutor, that the best way to resolve Cady’s case was to drop charges
against Cady in exchange for a six-month “cooling off” period. His actions were
sufficiently analogous to plea bargaining to be considered as duties executed as an arm
of the state.
No. 08-1795         Cady v. Arenac County, et al.                                   Page 13


        The Eleventh Amendment has long been interpreted to bar federal courts from
exercising jurisdiction over actions against a state brought by her own citizens. Papasan
v. Allian, 478 U.S. 265, 276 (1986).         “Unless a State has waived its Eleventh
Amendment immunity or Congress has overridden it, . . . a State cannot be sued directly
in its own name regardless of the relief sought.” Graham, 473 U.S. at 167 n.14 (citation
omitted); see also Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n.1 (1985)
(“[W]e require an unequivocal indication that the State intends to consent to federal
jurisdiction that otherwise would be barred by the Eleventh Amendment.”) “An official
can . . . be sued in his official capacity. But an official-capacity suit against a state
official is deemed to be a suit against the state and is thus barred by the Eleventh
Amendment, absent a waiver . . . .” Scott v. O’Grady, 975 F.2d 366, 369 (7th Cir. 1992)
(citing Graham, 473 U.S. at 169). The Supreme Court recognizes an exception to this
rule if an official-capacity suit seeks only prospective injunctive or declaratory relief.
Papasan, 478 U.S. at 276-78. In the instant case, however, Cady sued the Arenac
County and County Prosecutor Broughton for compensatory and punitive damages, not
for injunctive or declaratory relief.

        The question remains whether we may sua sponte raise the issue of sovereign
immunity when neither the parties nor the district court appears to have considered it.
The Supreme Court has issued somewhat contradictory holdings on this matter. In
Edelman v. Jordan, 415 U.S. 651, 678 (1974), the Court said that the Eleventh
Amendment “sufficiently partakes of the nature of a jurisdictional bar so that it need not
be raised in the trial court.” See also Atascadero State Hosp., 473 U.S. at 238 n.1 (“The
principle that the jurisdiction of the federal courts is limited by the sovereign immunity
of the States is, without question, a reflection of concern for the sovereignty of the States
. . . .” (citation and internal quotation marks omitted)). Later, the Court retreated from
the “jurisdictional bar” language in Wisconsin Department of Corrections v. Schacht,
524 U.S. 381, 389 (1989), and instead described the Eleventh Amendment as “grant[ing]
the State a legal power to assert a sovereign immunity should it choose to do so.” If the
defense is not raised, said the Court, a court need not “raise the defect on its own” and
may simply “ignore” the issue. Id.
No. 08-1795         Cady v. Arenac County, et al.                                Page 14


         The Sixth Circuit has largely followed the “jurisdictional bar” approach in
Edelman by holding that a federal court “can raise the question of sovereign immunity
sua sponte because it implicates important questions of federal-court jurisdiction and
federal-state comity.” S&M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008)
(citation omitted); see also Nair v. Oakland County Cmty. Mental Health Auth., 443 F.3d
469, 474 (6th Cir. 2006) (“Like subject-matter jurisdiction, a sovereign-immunity
defense may be asserted for the first time on appeal, and it may (and should) be raised
by federal courts on their own initiative.” (citations omitted)); Mixon v. Ohio, 193 F.3d
389, 397 (6th Cir. 1999) (stating that a federal court “may sua sponte raise the issue of
lack of jurisdiction because of the applicability of the eleventh amendment” (citation and
internal quotation marks omitted)). We are thus persuaded that we have the authority
to raise the issue of sovereign immunity even though it has not been asserted by County
Prosecutor Broughton’s counsel, and that Cady’s suit against Broughton in his official
capacity should be barred by the Eleventh Amendment. In sum, the district court
reached the right result for the wrong reason regarding this aspect of Cady’s § 1983
claim.

         c.     Arenac County

         We now turn our attention to Arenac County as the remaining defendant in this
case. Units of local government are not entitled to sovereign immunity under the
Eleventh Amendment. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 369
(2001). Pursuant to Monell v. Department of Social Services, 436 U.S. 658, 691 (1978),
a plaintiff suing a unit of local government, such as a county, must identify an
unconstitutional policy or custom in order to prevail on a § 1983 claim against it. Bd.
of the County Comm’rs v. Brown, 520 U.S. 397, 403-04 (1997) (“[W]e have required a
plaintiff seeking to impose liability on a municipality under § 1983 to identify a
municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.”) A single act by a
“decisionmaker possess[ing] final authority to establish municipal policy with respect
to the action ordered” may suffice in demonstrating that policy or custom. Pembaur v.
No. 08-1795         Cady v. Arenac County, et al.                                 Page 15


Cincinnati, 475 U.S. 469, 481 (1986). Cady alleges that County Prosecutor Broughton
is such a decisionmaker.

         But as explained above, when County Prosecutor Broughton made the decisions
related to the issuance of state criminal charges against Cady, the entry of the DPA, and
the prosecution of Cady, he was acting as an agent of the state rather than of Arenac
County. His actions therefore cannot be attributed to Arenac County, and Arenac
County cannot be held liable for Broughton’s actions even if those actions violated
Cady’s rights. See Pusey, 11 F.3d at 659 (“[The prosecutor] was acting on behalf of the
state when she prosecuted state criminal charges and therefore her actions in prosecuting
the charges, at that point, could not be attributed to the city.”). Cady did not allege any
Arenac County policy or custom, apart from Broughton’s actions, that violated his rights.
The district court therefore properly dismissed Cady’s § 1983 claim against Arenac
County, once again reaching the right result for the wrong reason.

                                  III. CONCLUSION

         For all of the reasons set forth above, we AFFIRM the judgment of the district
court.
No. 08-1795         Cady v. Arenac County, et al.                                 Page 16


                                  _________________

                                      CONCURRENCE
                                  _________________

        BOYCE F. MARTIN, JR., concurring. I concur in the majority opinion except
with respect to Cady’s claim against county prosecutor Broughton in his official
capacity.

        The majority rejects Cady’s claim by sua sponte declaring it barred by the
Eleventh Amendment. But unlike federal jurisdiction, which “can neither be waived nor
assumed,” United States v. Gagnon, 553 F.3d 1021, 1023 (6th Cir. 2009), Eleventh
Amendment immunity is waiveable, both expressly or because it has not been raised, see
Atascadero State Hospital v. Scanlon, 473 U. S. 234, 238 (1985).

        Yet today the majority confusingly (and incorrectly) implies both that appellate
courts must raise Eleventh Amendment immunity on their own, and, alternatively, that
we merely retain the authority to do so. Only the latter is correct: we may raise the
question of sovereign immunity, see S&M Brands, Inc. v. Cooper, 527 F.3d 500, 507
(6th Cir. 2008), but the question remains when we should, see, e.g., Carducci v. Regan,
714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.) (“The premise of our adversarial system
is that appellate courts do not sit as self-directed boards of legal inquiry and research,
but essentially as arbiters of legal questions presented and argued by the parties before
them.”). Notwithstanding some dicta—see Nair v. Oakland County Cmty. Mental Health
Auth., 443 F.3d 469, 474 (6th Cir. 2006) (“[S]overeign immunity . . . may be asserted
for the first time on appeal, and it may (and should) be raised by federal courts on their
own initiative.”)—the cases the majority cites do not support its view that Eleventh
Amendment sovereign immunity must be raised by federal courts whenever they detect
the faintest whiff of its presence.

        For example, in Nair, sovereign immunity was actually raised, albeit as an
alternative defense; the Nair Court’s dicta came during its explanation of why it
addressed the immunity defense rather than the merits. 443 F.3d at 474. And in S&M
No. 08-1795        Cady v. Arenac County, et al.                                  Page 17


Brands, Inc. v. Cooper, this Court addressed sovereign immunity but did so only after
requesting additional briefing on the question, something the majority here had no
interest in. Cf. S&M Brands, 527 F.3d at 507 (“We asked for and received from the
parties supplemental briefs on the issue.”) (citing Nair, 443 F.3d at 474).

       Moreover, at oral argument, counsel for Broughton and the county was asked
whether he relied on Eleventh Amendment immunity. He carefully explained that he had
considered that option and declined to raise that defense. This vigorous opposition of
friendly questioning from the bench may not have been the wisest litigation maneuver,
but it was honest and makes the majority’s desire to reach out and decide the question
not merely the raising of an issue sua sponte, but instead the overriding of an explicit
waiver, albeit one made at oral argument.

       And there was a good reason for the county’s counsel not to rely on Eleventh
Amendment immunity: it likely does not apply. I, like the majority, have of course not
had the benefit of briefing on this question—so I, also like the majority, cannot claim
perfection. But I disagree with the majority’s conclusion that county prosecutor
Broughton acted as an arm of the state when he proposed the release-dismissal
agreement. Eleventh Amendment immunity ought not apply.

       The majority is correct that claims against individuals in their “official
capacities” are in essence claims against the government itself. But counties and other
municipalities are not states, so such officials only receive sovereign immunity when
they “act as an arm of the state.” Brotherton v. Cleveland, 173 F.3d 552, 563 (6th Cir.
1999). In holding that Broughton so acted, the majority exclusively relies on Pusey v.
Youngstown, 11 F.3d 652, 657 (6th Cir. 1993), and asserts that “the facts of this case are
essentially the same as in Pusey.” Hardly. Pusey sued county prosecutor Maureen Cronin
under § 1983, alleging that Cronin violated Pusey’s First Amendment rights by failing
to notify her that Cronin would reduce the charges against the killer of Pusey’s son at an
upcoming hearing. We rejected her claim, reasoning that “Cronin acted on behalf of the
state when she was prosecuting state criminal charges and reduced the charge.” Id. at
No. 08-1795             Cady v. Arenac County, et al.                                                Page 18


657. The majority thinks Pusey analogous because Broughton filed criminal charges
against Cady, which was the execution of state criminal law.

         But Cady does not challenge the prosecution of the criminal charge, or even
release-dismissals abstractly. He instead challenges the content of the release-dismissal
agreement here—i.e. the requirement that Cady not sue in civil court for six-months any
of the other people involved. There is simply no analogue for that in Pusey. Indeed,
whether that particular release-dismissal condition was permissible is governed by the
standard this Court has articulated for distinguishing between situations where local
officials merely carry out state policy (and therefore act as an arm of the state) or
whether they act in their own, local, policymaking capacity (and therefore do not). As
we have explained: “The essential question asks whether [the local official] could have
chosen not to use his authority under the state statute and how he would use such
authority; if he could have opted to act differently, or not to act, he did not act as an arm
of [the state] when he formulated and implemented the contested policy.” Brotherton,
173 F.3d 566. By contrast, the Eleventh Amendment bars the claim if the official “rotely
enforce[d]” state law or merely “compl[ied] with state mandates that afford no
discretion.” Id.1

         Here, it is evident that Broughton was not “rotely” “complying” with state law:
he used his position as county prosecutor to make a policy choice to enter into a release-
dismissal agreement and, more importantly, to include in that agreement a requirement
that Cady not sue several others in civil court. The majority’s conclusion otherwise rests
on two assumptions: first, the bald assertion that no “policy” is implicated, and, second,
an attempt to restate the “essential question” differently than did Brotherton to assume



         1
           See, e.g., Ruehman v. Sheahan, 34 F.3d 525, 529 (7th Cir. 1994) (“The Sheriff has not alerted
us to authority that requires him to use any computer system—let alone this one—to track warrants. A
county agency, under the president of the county board, specified the [system’s] design of SPWA. . . . State
law requires the Sheriff to arrest the right people but says nothing about how he should do it. Design and
auditing decisions have been left entirely to him. He could junk SPWA tomorrow, or alter its every detail,
without thwarting any state policy or law. Each sheriff in Illinois is free to take a unique approach. A suit
against the Sheriff would not prevent the state from later taking over the task of tracking warrants through,
say, a single computer in the Clerk’s Office. SPWA allows the Sheriff to find warrants faster than if he had
to check with the Clerk’s Office in the first instance, but is not the product of a state directive. It follows
that in designing and implementing SPWA the Sheriff is not acting as the State of Illinois.”).
No. 08-1795         Cady v. Arenac County, et al.                                  Page 19


a conclusion. The proper question here is whether, even assuming that release-dismissals
generally are within a prosecutor’s mandated duties (not at all clear), the contents of that
agreement also were within his mandated duties. It is hardly novel that an agent might
have general authority to enter into an agreement of some kind but nevertheless can
exceed his authority in the final agreement’s specific terms. In other words, a prosecutor
acts on his own (or at least only on the county’s) behalf when he exceeds the authority
expressly delegated to him by the state. This principle does not make his action unlawful,
but it means that sovereign immunity, a defense afforded only to the state itself, does not
extend to every action by every official of a local polity. See McCurdy v. Sheriff of
Madison County, 128 F.3d 1144, 1146 (7th Cir. 1997) (“The added wrinkle here,
however, is that by delaying the service of the arrest warrant for so long, the sheriff's
office may have exceeded the scope of its delegated state authority, may have ceased,
therefore, to be an arm of the state . . . . If that is what happened here, this suit would
probably be against the deputy in his personal capacity; but it would be (also or instead)
against the sheriff in his official capacity if the deputy had been acting pursuant to a
policy of the sheriff.”); Monell v. Dep’t. of Social Services, 436 U.S. 658, 694 (1978).

        Instead, the majority makes the above assumptions based on its myopic view that
we cannot look beyond the act of the release-dismissal agreement itself and into its
contents. Release-dismissals are not like plea bargains: the justification for plea bargains
focuses on the prosecutor’s duties with respect to his limited institutional role and his
concern for often limited prosecutorial resources. Release-dismissals, by contrast,
concern only whether the defendant may sue the officers who apprehended him for
constitutional violations (arguably within the prosecutorial duties), or some extant third-
parties in civil court (far attenuated from typical prosecutorial duties). Indeed, states
generally disfavor release-dismissal agreements as a policy matter, see, e.g. The Legal
Ethics of Release-Dismissal Agreements: Theory and Practice, 1 Stan. J. Civ. R. & Civ.
L. 371 (2005), and, as far as I can tell, a release-dismissal that purports to dismiss the
defendant’s civil claims against third-parties is a rarity—at oral argument the county’s
lawyer told us that the prosecutor had never done this before and has not done it since.
No. 08-1795          Cady v. Arenac County, et al.                                     Page 20


Thus, in my view, Cady’s suit against Broughton in his official capacity is not barred by
the Eleventh Amendment.2

        Yet, again, neither I nor the majority had the benefit of any briefing on this
question; the majority’s total certainty is thus not reassuring. And it is undoubtedly true
that we are more likely to misstep when we decide questions without any briefing by
counsel. It is more prudent to resist this powerful seduction to think ourselves equal to
the great common law jurists and make pronouncements on every possible legal
question, presented or not. Indeed, it would be prudent to abstain here, where the county
has waived immunity and we do not have the benefit of any additional briefing.

        I nevertheless concur in the judgment because I would hold the release-dismissal
agreement here—though unwise and potentially unseemly—enforceable. This Court, in
reliance on the Supreme Court’s opinion in Newton v. Rumery, 480 U.S. 386, 399
(1987), has explained that a release-dismissal agreement is enforceable if it was (a)
voluntarily made, (b) not the product of prosecutorial overreaching, and (c) in the public
interest. Coughlen v. Coots, 5 F.3d 970, 973 (6th Cir. 1993) (citing Rumery, 480 U.S. at
399) (O’Connor, J., concurring in part and concurring in the judgment)). Some of the
cases have used “prosecutorial misconduct” instead of “prosecutorial overreach,” but,
while a showing of legally cognizable police “misconduct” would be sufficient, it is not
necessary. The inquiry under Rumery and our cases is whether the agreement was
voluntary and whether the agreement furthered the public interest. For example,
Rumery’s own attorney drafted the release-dismissal agreement and counseled his client
at length on its benefits and implications, and the prosecutor’s decision to seek a civil
release was motivated largely by a desire to insulate Mary Deary, the key witness in a




        2
          Erickson v. Pawnee County Bd. Of County Comm’rs, 263 F.3d 1151, 1154 (10th Cir.
2001) is completely inapposite: the quote the majority pulls from that case only supported the
Tenth Circuit’s conclusion that a defendant’s due process rights were not violated when the
prosecutor employed a private attorney to provide additional research; it was the prosecutor who
fulfilled his normal duties. And indeed, a county prosecutor can choose who to offer immunity
to, but that says nothing about whether, having done so, he is entitled to sovereign immunity.
Although the plaintiff in Erickson raised Eleventh Amendment immunity, the court did not
address it.
No. 08-1795             Cady v. Arenac County, et al.                             Page 21


related aggravated sexual assault case, from the need to testify at Rumery’s criminal trial
or in his civil suit.

        This case lacks most of those compelling facts. Here, the prosecutor sought to
insulate people involved in some sort of altercation from civil liability. Choosing to
prosecute only Cady was well within the prosecutor’s discretion, but it seems a bit
bizarre that he would seek to prevent Cady from filing a civil suit. Although prosecutors
are entrusted with protecting the public, it is unusual for one to try to shape local civil
enforcement. Indeed, prosecutors lack any special insight into whether such civil
lawsuits might succeed, and the results in this case are a testament to that fact: Cady
violated the release-dismissal agreement and sued some of the others involved, and at
oral argument the counsel told us that Cady obtained a sizable settlement from them,
while he was acquitted of all charges that the prosecutor brought against him related to
this incident.

        But, in my view, one aspect of the release-dismissal agreement brings it within
the public interest: it had a time-limit of six-months. Had Cady waited six-months (well
under the statute of limitations for the civil claims he brought), all sides agree that the
release-dismissal would have been fulfilled and he both could have brought his civil
claims and been successfully released from criminal charges against him. The attorney
for the county asserted that this was simply to effect a “cooling off” period, and I think
that enough, barely, to save this agreement.

        I concur.
