                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-2-2006

Yarris v. Delaware
Precedential or Non-Precedential: Precedential

Docket No. 05-1319




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                                              PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                          No. 05-1319


                     NICHOLAS YARRIS


                               v.

   COUNTY OF DELAWARE; BARRY GROSS, ESQUIRE;
     WILLIAM H. RYAN, JR.; DENNIS MCANDREWS,
      ESQUIRE; OFFICE OF DISTRICT ATTORNEY OF
    DELAWARE COUNTY; CRIMINAL INVESTIGATION
   DIVISION, RANDOLPH MARTIN, Criminal Investigation
   Division, Office of the District Attorney Delaware County;
  DAVID PFEIFER, Criminal Investigation Division, Office of
the District Attorney Delaware County; CLIFTON MINSHALL,
 Criminal Investigation Division, Office of the District Attorney
     Delaware County; CRAIG SITI, Investigator, Criminal
 Investigation Division, Office of the District Attorney Delaware
                             County,
                                            Appellants



        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                    (D.C. No. 04-cv-03804)
          District Judge: Honorable Juan R. Sánchez



                     Argued April 24, 2006
 Before: FUENTES, STAPLETON, and ALARCÓN,* Circuit
                      Judges.

                   (Filed: October 2, 2006)


John W. Beavers, Esq. (Argued)
John Wendell Beavers & Associates
1518 Walnut Street, Suite 800
Philadelphia, Pennsylvania 19102
      Counsel for Appellee

William F. Holsten, II, Esq.
Robert P. DiDomenicis, Esq.
Paola T. Kaczynski
Holsten & Associates
One South Olive Street
Media, Pennsylvania 19063

William J. Convoy, Esq.
C. Scott Toomey, Esq. (Argued)
Campbell Campbell Edwards & Convoy
690 Lee Road, Suite 300
Wayne, Pennsylvania 19087
      Counsel for Appellants

                 _______________________

                 OPINION OF THE COURT
                 _______________________


FUENTES, Circuit Judge.

      Nicholas Yarris claims he spent twenty-two years on death
row for a kidnaping, rape, and murder he did not commit because


      *
        The Honorable Arthur L. Alarcón, Senior Judge, United
States Court of Appeals for the Ninth Circuit, sitting by
designation.

                               2
Delaware County, its prosecutors, and its detectives obscured and
destroyed evidence pointing to the actual killer, manufactured
evidence against him, and thwarted his demands for DNA testing.
After Yarris’s conviction was overturned and the charges against
him were dropped, he filed this action under 42 U.S.C. § 1983
alleging violations of his rights under the United States
Constitution and Pennsylvania law. The prosecutors and detectives
moved to dismiss Yarris’s claims on the basis of absolute and
qualified immunity. The District Court denied the motion to
dismiss in part, and this appeal followed. We are asked to
determine whether the District Court properly concluded that the
prosecutors and detectives are not entitled to immunity from any of
Yarris’s claims. For the reasons that follow, we will affirm in part,
reverse in part, and remand for further proceedings.

                          I. Background

       A.     Factual Background1

      In 1981, Yarris was arrested and charged with attempted
murder after assaulting a police officer during a traffic stop. Yarris
was subsequently placed in solitary confinement in a Delaware
County prison. Yarris was addicted to methamphetamine at the
time of his arrest, and he began suffering from “cold turkey”
withdrawal.

       While in prison, Yarris learned from a newspaper of the
unsolved kidnaping, rape, and murder of Linda Mae Craig, which
took place four days before Yarris’s arrest. In an effort to bargain
for release from prison, Yarris told Delaware County detectives
Randolph Martin (“Martin”) and David Pfeifer (“Pfeifer”) that he
had information about the Craig murder. He told the detectives
that a fellow drug addict had admitted to raping and murdering
Craig, but that the addict had since died from a drug overdose. In


       1
        Because this is an appeal of the District Court’s denial of
absolute and qualified immunity at the motion-to-dismiss stage of
the proceedings, we accept Yarris’s allegations as true and draw all
reasonable inferences in his favor. See Torisky v. Schweiker, 446
F.3d 438, 442 (3d Cir. 2006).

                                  3
fact, Yarris was wrong and it was the addict’s brother who had died
from an overdose. After determining that Yarris’s information was
incorrect, Martin and Pfeifer returned Yarris to solitary
confinement and told him that unless he came up with a better story
they would think he had raped and murdered Craig.

        After a failed suicide attempt and a brief hospital stay,
Yarris was again returned to solitary confinement. Yarris claims
that he was placed in a freezing cell with broken windows, without
any clothes, sheets, or blankets. Seeking a transfer to a different
cell, Yarris offered to share more information about the Craig
murder with a prison guard. According to the prison guard, Yarris
said that he raped Craig, but that another man murdered her. The
day after Yarris’s conversation with the guard, Yarris was charged
with kidnaping, robbing, raping, and murdering Craig.

        Before proceeding to trial for the Craig murder, Yarris was
tried and acquitted for the crime for which he was initially arrested
and jailed—the attempted murder of a police officer. After the
verdict, the prosecutor assigned to the case, assistant district
attorney Barry Gross (“Gross”), allegedly slammed his case file
against the courtroom wall, screamed at Yarris, “Motherfucker,
you’ll never leave the county alive!” and spat in Yarris’s face.

        Yarris subsequently went to trial for the Craig murder, with
Gross prosecuting the case. At trial, the prosecution introduced
into evidence a photograph of the bloody interior of the victim’s
car, which showed a pair of men’s leather gloves inside the vehicle.
The prosecution had never informed Yarris that the gloves existed
and, according to Yarris, had determined that the gloves were too
small to fit Yarris. Nonetheless, the prosecution led the jury to
infer that Yarris’s fingerprints were not found in the vehicle
because he wore the gloves. In addition to two witnesses who
testified that they observed Yarris stalking the victim, the
prosecution presented the testimony of Charles Catalino, a
jailhouse informant who stated that Yarris confessed his guilt while
the two were detained in adjacent cells at the Delaware County
prison. Yarris claims the informant testified against him in
exchange for a reduced sentence and visits with his wife. On July
1, 1982, the jury found Yarris guilty on all counts and returned a
verdict recommending imposition of the death penalty. Yarris was

                                 4
formally sentenced to death on January 24, 1983. The
Pennsylvania Supreme Court eventually affirmed Yarris’s
conviction and sentence in October of 1988.

       In March of 1988, Yarris requested testing of the physical
evidence recovered from the crime scene using newly developed
DNA testing techniques. He was initially informed by the District
Attorney’s office that all of the relevant evidence had been
destroyed, except for two stained slides. The slides were tested,
but in August of 1988 the laboratory rejected them as being of
insufficient quantity for DNA testing.

        After reviewing the transcripts of his criminal trial, Yarris
discovered the existence of two additional slides. Yarris contacted
the District Attorney’s office and assistant district attorney Dennis
McAndrews sent two detectives to retrieve the evidence and
transport it to the coroner and then to the laboratory. According to
Yarris, detectives Pfeifer and John Davidson2 never delivered the
slides to the coroner; instead, they kept the slides in a paper bag
under a detective’s desk where the slides eventually rotted and
were rendered useless for DNA testing. In 1989, additional
evidence in the form of the victim’s clothing was discovered.
Yarris successfully petitioned for DNA testing of this evidence in
November of 1989, but the results were inconclusive.

       Beginning in 1989, Yarris began to request that evidence be
tested again, this time using a newer and more accurate type of
DNA testing known as PCR-enhanced DNA testing. The District
Attorney eventually agreed to additional testing of the evidence in
September 1992, but only if the testing was conducted by the
Alabama Department of Forensic Science, which Yarris alleges
was not competent in PCR-enhanced DNA testing. The test results
were inconclusive.

       Yarris eventually sought habeas relief from the United
States District Court for the Eastern District of Pennsylvania. In


       2
        Davidson died some time after engaging in the conduct
alleged in the Amended Complaint and, therefore, is not a
defendant in this action.

                                 5
April of 2003, PCR-enhanced DNA testing was performed on the
gloves found in the victim’s car, and the results indicated that
Yarris was not the “habitual user” of the gloves. PCR-enhanced
DNA testing was then performed on semen stains found on the
victim’s clothing, and the results indicated that the sample did not
come from Yarris, but did come from two unknown males, one of
whom was the “habitual user” of the gloves. PCR-enhanced DNA
testing was then done on scrapings found under the victim’s
fingernails, which revealed that the scrapings were from the
“habitual user” of the gloves.

       In light of the new evidence, on August 19, 2003, the district
court ordered that Yarris be granted a new trial within two weeks,
or that Yarris be set free. On August 26, 2003, the District
Attorney’s office and Yarris’s counsel filed a joint petition in the
Delaware County Court of Common Pleas requesting that the
conviction be vacated. The court vacated Yarris’s conviction and
sentence on September 3, 2003. After receiving a ninety-day
extension to consider whether to re-prosecute Yarris, the District
Attorney dropped all charges against Yarris on December 9, 2003.
Yarris was released from prison on January 16, 2004.

       B.     Procedural Background

        Yarris commenced this action in the United States District
Court for the Eastern District of Pennsylvania on August 11, 2004.
In his complaint, Yarris named as defendants the County of
Delaware; the Office of the District Attorney of Delaware County;
the Criminal Investigation Division of the Office of the District
Attorney of Delaware County; Assistant District Attorneys Barry
Gross, Dennis McAndrews, and William H. Ryan, Jr.; and
Criminal Investigation Division Detectives Randolph Martin,
Clifton Minshall, David Pfeifer, and Craig Siti. Yarris later filed
an Amended Complaint, which contains two causes of action
arising out of Yarris’s arrest and conviction for murder in 1982: the
first for federal constitutional claims, and the second for claims
under Pennsylvania law.

       The ADAs and CID Detectives moved, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the
Amended Complaint on the basis of, among other things, absolute

                                 6
and qualified immunity. The District Court granted the motion as
to Yarris’s Fifth Amendment claim against all defendants, and
Yarris’s claims against Minshall, who is no longer living. Yarris
v. Delaware County, No. 04-cv-3804, 2005 U.S. Dist. LEXIS
4131, at *12-13 (E.D. Pa. Feb. 28, 2005). However, the District
Court denied the motion as to the remainder of Yarris’s claims
against Assistant District Attorneys Gross, McAndrews, and Ryan
(collectively, the “ADAs”), and Criminal Investigation Division
Detectives Martin, Pfeifer, and Siti (collectively, the “CID
Detectives”). Id. The ADAs and CID Detectives appealed the
District Court’s denial of absolute and qualified immunity.

           II. Jurisdiction and Standard of Review

       The District Court had subject matter jurisdiction pursuant
to 28 U.S.C. §§ 1331 and 1343, as this case involves claims of
constitutional violations brought pursuant to 42 U.S.C. § 1983.
The District Court had supplemental jurisdiction over Yarris’s state
law claims pursuant to 28 U.S.C. § 1367(a). We have appellate
jurisdiction over this interlocutory appeal of the District Court’s
order denying absolute and qualified immunity from Yarris’s
constitutional claims to the extent that the order turns on issues of
law. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

       We exercise plenary review of the legal issues of absolute
and qualified immunity. See Kulwicki v. Dawson, 969 F.2d 1454,
1461 (3d Cir. 1992). We apply the same standard that district
courts apply at the motion-to-dismiss stage, and our review is
limited to the contents of the complaint and any attached exhibits.
See id. at 1462. We are thus concerned with neither the accuracy
of the facts alleged nor the merits of Yarris’s underlying claims.
We must construe the facts in the manner most favorable to Yarris,
in order to determine whether the state officials are entitled to
absolute or qualified immunity from any claims based on their
alleged conduct.

                          III. Discussion

      The ADAs and CID Detectives argue that the District Court
should have granted their motion to dismiss because they are
immune from each of Yarris’s claims against them. Specifically,

                                 7
the ADAs contend that they are entitled to either absolute or
qualified immunity, and the CID Detectives contend that they are
entitled to qualified immunity. We address these arguments in
turn.

       A.     The Assistant District Attorneys

              1.      Absolute Immunity           From     Yarris’s
                      Constitutional Claims

        Although § 1983 purports to subject “[e]very person” acting
under color of state law to liability for depriving any other person
in the United States of “rights, privileges, or immunities secured by
the Constitution and laws,” the Supreme Court has recognized that
§ 1983 was not meant “to abolish wholesale all common-law
immunities.” Pierson v. Ray, 386 U.S. 547, 554 (1967). To that
end, the Court has identified two kinds of immunities under
§ 1983: qualified immunity and absolute immunity. Most public
officials are entitled only to qualified immunity.3 Harlow v.
Fitzgerald, 457 U.S. 800, 807 (1982). However, for public officials
who perform “special functions,” Butz v. Economou, 438 U.S. 478,
508 (1978), the Court has determined that absolute immunity is
appropriate because it is “better to leave unredressed the wrongs
done by dishonest officers than to subject those who try to do their
duty to the constant dread of retaliation.” Imbler v. Pachtman, 424
U.S. 409, 418 (1976) (quotation marks and citation omitted).
“[T]he official seeking absolute immunity bears the burden of
showing that such immunity is justified for the function in
question.” Burns v. Reed, 500 U.S. 478, 486 (1991).

       In Imbler, the Supreme Court held that state prosecutors are
absolutely immune from liability under § 1983 for actions
performed in a quasi-judicial role. See 424 U.S. at 431. This
immunity extends to acts that are “intimately associated with the
judicial phase of the criminal process,” such as “initiating a
prosecution and . . . presenting the State’s case.” Id. at 430-31.
The Supreme Court has noted numerous public policy


       3
        We discuss qualified immunity in detail in Part III.B of this
opinion, infra.

                                 8
considerations underlying its extension of absolute immunity to
prosecutors:

       [S]uits against prosecutors for initiating and
       conducting prosecutions “could be expected with
       some frequency, for a defendant often will transform
       his resentment at being prosecuted into the ascription
       of improper and malicious actions to the State’s
       advocate”; lawsuits would divert prosecutors’
       attention and energy away from their important duty
       of enforcing the criminal law; prosecutors would
       have more difficulty than other officials in meeting
       the standards for qualified immunity; and potential
       liability “would prevent the vigorous and fearless
       performance of the prosecutor’s duty that is essential
       to the proper functioning of the criminal justice
       system.” . . . [T]here are other checks on
       prosecutorial misconduct, including the criminal law
       and professional discipline.

Burns, 500 U.S. at 485-86 (citing Imbler, 424 U.S. at 425, 427-28,
429).

        Since extending absolute immunity to state prosecutors in
Imbler, the Supreme Court has clarified that absolute immunity
does not extend to “[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.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993);
see also Burns, 500 U.S. at 494-96. At the same time, the Court
has reaffirmed that “acts undertaken by a prosecutor in preparing
for the initiation of judicial proceedings or for trial, and which
occur in the course of his role as an advocate for the State, are
entitled to the protections of absolute immunity.” Buckley, 509
U.S. at 273.

       Ultimately, whether a prosecutor is entitled to absolute
immunity depends on whether she establishes that she was
functioning as the state’s “advocate” while engaging in the alleged
conduct that gives rise to the constitutional violation. See id. at
274. As the Supreme Court explained in Kalina v. Fletcher, “in

                                 9
determining immunity, we examine the nature of the function
performed, not the identity of the actor who performed it.” 522
U.S. 118, 127 (1997) (internal quotation marks, citation, and
footnote omitted).

        Turning to the instant case, Yarris’s Amended Complaint
alleges that the ADAs engaged in conduct that violated Yarris’s
rights under the Fourth, Sixth, Eighth, and Fourteenth Amendments
to the United States Constitution.4 In support of these claims, the
Amended Complaint alleges that the ADAs deliberately destroyed
exculpatory evidence, withheld exculpatory evidence, fabricated a
false confession, and obtained a false statement from a jailhouse
informant.5 We analyze whether the ADAs are entitled to absolute
immunity from claims based on this alleged conduct below.

                     a.     Deliberately Destroying Exculpatory
                            Evidence

       The Amended Complaint alleges that the ADAs violated
Yarris’s Fourteenth Amendment rights when they “deliberately
destroyed . . . highly exculpatory information.”6 (Am. Compl.

       4
          The Amended Complaint also alleges that the ADAs’
conduct violated Yarris’s Fifth Amendment rights. As noted
above, however, the District Court dismissed that claim, and that
ruling is not now on appeal.
       5
         In denying absolute immunity to the ADAs, the District
Court stated that Yarris alleged that the ADAs “used torture and
physical coercion to extract incriminating statements.” As the
ADAs point out, however, although the Amended Complaint
alleges that the CID Detectives engaged in “torture” (Am. Compl.
¶ 91), there are no allegations that the ADAs did so. Accordingly,
this was not a proper basis on which to deny absolute immunity to
the ADAs.
       6
         The ADAs argue that “[t]he Complaint does not allege that
the ADA Appellants expunged or destroyed investigative notes
regarding the black gloves.” (Appellants’ Reply Br. at 13.) We
believe, however, that Yarris’s assertion that the ADAs deliberately
destroyed highly exculpatory information (Am. Compl. ¶ 92), is

                                10
¶ 92.)         Although we have not directly addressed whether
prosecutors are absolutely immune from claims based on the
destruction of exculpatory evidence, we have denied absolute
immunity where a plaintiff alleged that a prosecutor knowingly
failed to preserve exculpatory evidence. See Henderson v. Fisher,
631 F.2d 1115, 1120 (3d Cir. 1980) (per curiam). We have also
observed that “courts have been unwilling to extend absolute
immunity to a prosecutor’s alleged perjury or destruction of
evidence when not closely connected to an ongoing criminal
prosecution.” Davis v. Grusemeyer, 996 F.2d 617, 630 n.28 (3d
Cir. 1993); but see Heidelberg v. Hammer, 577 F.2d 429, 432 (7th
Cir. 1978) (prosecutor absolutely immune from suit claiming that
he destroyed and falsified evidence).

       We believe that destroying exculpatory evidence is not
related to a prosecutor’s prosecutorial function. Unlike decisions
on whether to withhold evidence from the defense, decisions to
destroy evidence are not related to a prosecutor’s prosecutorial
function. As our late colleague Judge Becker aptly observed in
Wilkinson v. Ellis, 484 F. Supp. 1072, 1083 (E.D. Pa. 1980):

       [O]nce the decision is made not to furnish evidence to the
       defense, no additional protectible prosecutorial discretion
       is involved in deciding to dispose of it, and . . ., while
       deciding not to furnish the prosecution’s evidence to the
       defense may be an act of advocacy, throwing the evidence
       away is not such an act.

Accordingly, the ADAs are not entitled to absolute immunity from
suit for constitutional violations caused by their alleged deliberate
destruction of exculpatory evidence.

                      b.     Withholding Exculpatory Evidence

       The Amended Complaint next alleges that the ADAs
violated Yarris’s constitutional rights when they: “withheld highly
exculpatory information”; “fail[ed] to disclose investigatory
materials and exculpatory evidence”; “fail[ed] to release physical


sufficiently detailed at the motion-to-dismiss stage.

                                 11
evidence for DNA testing in a prompt manner”; and failed “to
release exculpatory physical, investigatory, and DNA evidence.”
(Am. Compl. ¶¶ 92, 93, 96).

        It is well settled that prosecutors are entitled to absolute
immunity from claims based on their failure to disclose exculpatory
evidence, so long as they did so while functioning in their
prosecutorial capacity. As the Supreme Court explained in Imbler,
the “deliberate withholding of exculpatory information” is included
within the “legitimate exercise of prosecutorial discretion.” 424
U.S. at 431-32 n.34; see also Smith v. Holtz, 210 F.3d 186, 199
n.18 (3d Cir. 2000). Furthermore, courts have held that prosecutors
are entitled to immunity even when they withhold evidence after
trial while the criminal conviction is on appeal. See, e.g.,
Parkinson v. Cozzolino, 238 F.3d 145, 152 (2d Cir. 2001)
(explaining that “absolute immunity covers prosecutors’ actions
after the date of conviction while a direct appeal is pending”).
Here, even accepting the allegations concerning the ADAs as true
and drawing all reasonable inferences in Yarris’s favor, we find
that the ADAs are absolutely immune from claims based on
allegations that they “intentionally concealed” exculpatory
evidence prior to trial. (Am. Compl. ¶¶ 4, 5.) See Imbler, 424 U.S.
at 431-32 n.34.

        Less clear is whether the ADAs are absolutely immune from
claims based on allegations that they withheld exculpatory
evidence, in the form of DNA samples, after Yarris was convicted
and sentenced to death. (Am. Compl. ¶¶ 93, 96.) We agree with
other courts that “[a]bsolute immunity applies to the adversarial
acts of prosecutors during post-conviction proceedings . . . where
the prosecutor is personally involved . . . and continues his role as
an advocate,” but that “where the role as advocate has not yet
begun . . . or where it has concluded, absolute immunity does not
apply.” Spurlock v. Thompson, 330 F.3d 791, 799 (6th Cir. 2003).
Compare Houston v. Partee, 978 F.2d 362, 366 (7th Cir. 1992) (no
absolute immunity where prosecutors were “not personally
prosecuting the appeal” in post-conviction proceedings) with
Carter v. Burch, 34 F.3d 257, 263 (4th Cir. 1994) (absolute
immunity where prosecutor “was handling the postconviction
motions and the initial direct appeal . . . [and thus] still functioning
as an advocate for the State”). After a conviction is obtained, the

                                  12
challenged action must be shown by the prosecutor to be part of the
prosecutor’s continuing personal involvement as the state’s
advocate in adversarial post-conviction proceedings to be
encompassed within that prosecutor’s absolute immunity from suit.

        Based on the facts on the record as it now stands, the
prosecutors have not satisfied their burden of showing that they are
entitled to the immunity they seek. Yarris’s direct appeal to the
Supreme Court of Pennsylvania was argued in April and decided
in October of 1988. See Commonwealth v. Yarris, 549 A.2d 513
(Pa. 1988). Yarris’s numerous requests for DNA testing of
physical evidence began in March 1988—presumably in an attempt
to uncover new evidence that might entitle him to extraordinary
relief in case the legal avenues he was pursuing did not succeed.
The prosecutors have not shown that their response to Yarris’s
DNA test requests was part of their advocacy for the state in post-
conviction proceedings in which they were personally involved.

        Without such a showing, a prosecutor acting merely as a
custodian of evidence after conviction serves the same non-
adversarial function as police officers, medical examiners, and
other clerical state employees and—just as with certain police
investigative work—“it is neither appropriate nor justifiable that,
for the same act, [absolute] immunity should protect the one and
not the other[s].” Buckley, 509 U.S. at 273. The handling of
requests to conduct scientific tests on evidence made after
conviction—not related to grounds claimed in an ongoing
adversarial proceeding—can be best described as part of the
“prosecutor's administrative duties . . . that do not relate to an
advocate's preparation for the initiation of a prosecution or for
judicial proceedings” and “are not entitled to absolute immunity.”
Id. Because the ADAs have not yet shown how the handling of
DNA evidence related to ongoing adversarial proceedings in which
they were personally involved, we conclude that the prosecutors
may have been “function[ing] as . . . administrator[s] rather than as
. . . officer[s] of the court” and, thus, may be “entitled only to
qualified immunity.” Id.

                      c.     Concocting a False and Fabricated
                             Confession


                                 13
       The Amended Complaint next alleges that the ADAs
violated Yarris’s constitutional rights when they “concoct[ed] a
false and fabricated confession.” (Am. Compl. ¶ 93.) There is no
elaboration in the Amended Complaint regarding the circumstances
under which the ADAs fabricated a confession by Yarris. In fact,
the only reference to a confession is found in paragraph 40 of the
Amended Complaint, which discusses a conversation Yarris had on
February 1, 1982, with a prison guard who subsequently “gave a
statement and later testified that Yarris said that he had raped
Craig, but that another man named Mark had actually murdered
her, a statement known to be absolutely false in light of DNA
evidence conclusively showing that Yarris was not the rapist.”
(Am. Compl. ¶ 40.)

       Accepting Yarris’s allegations as true and drawing all
reasonable inferences in his favor, we must conclude that absolute
immunity from this claim is not appropriate at the motion-to-
dismiss stage. As already noted, the key question is whether the
ADAs were functioning as the state’s advocates when they
engaged in the conduct that gave rise to the evidence-fabrication
allegations. See Buckley, 509 U.S. at 274. In Buckley, the
Supreme Court denied absolute immunity to prosecutors who had
allegedly fabricated evidence that was used to obtain a criminal
conviction after it determined that “the prosecutors’ conduct
occurred well before they could properly claim to be acting as
advocates.” Id. at 275; see also Kulwicki, 969 F.2d at 1467 (stating
that prosecutor who fabricated confession would be absolutely
immune if he did so while prosecuting the case). In contrast, the
allegations here do not indicate whether the fabrication of Yarris’s
confession occurred during the preliminary investigation of an
unsolved crime, as in Buckley, or after the ADAs had decided to
indict Yarris and had begun working as the state’s advocates in the
prosecution of Yarris. Accordingly, at this stage of the
proceedings, the ADAs cannot establish that they are entitled to
absolute immunity for allegedly fabricating Yarris’s confession.

                      d.     Obtaining a False Statement from a
                             Jailhouse Informant

       The Amended Complaint also alleges that the ADAs
violated Yarris’s constitutional rights when they “obtain[ed] a false

                                 14
statement from a jailhouse informant.” (Am. Compl. ¶ 93.)
According to the Amended Complaint, after Yarris was charged
with murder, rape, kidnaping, and robbery, he was returned to his
prison cell, which was located next to a cell occupied by Charles
Catalino, who had been convicted of burglarizing ADA Ryan’s
home and was awaiting sentencing. (Am. Compl. ¶ 42.) Yarris
alleges that the following ensued:

              43. Charles Catalino subsequently falsely
       reported, and, perjuring himself, testified at trial, that
       Yarris expressed concern that his blood would be
       discovered at the scene of the murder and that he had
       committed the rape and murder, a statement now
       known to be absolutely false in light of DNA
       evidence conclusively showing that Yarris was not
       the rapist or murderer.

              44. Yarris believes and therefore avers that
       Catalino received a reduced sentence on the burglary
       charge to run concurrent with an existing sentence,
       was allowed conjugal visits with his spouse, and was
       released later in 1982.

(Am. Compl. ¶¶ 43-44.) Yarris thus claims that the ADAs used a
“‘stick and carrot’ treatment to elicit [Catalino’s] false testimony.”
(Am. Compl. ¶ 54.)

        Based on these allegations, the ADAs are entitled to
absolute immunity from Yarris’s claim that they obtained a false
statement from a jailhouse informant. As a general matter, we note
that a prosecutor is absolutely immune from liability for using
“false testimony in connection with [a] prosecution.” Kulwicki,
969 F.2d at 1465; see also Imbler, 424 U.S. at 430. With respect
to the solicitation of false statements alleged here, the ADAs are
entitled to absolute immunity to the extent that their conduct
occurred while they were acting as advocates rather than
investigators. As the Amended Complaint makes clear, Yarris had
already been charged with the Craig crimes before Catalino made
any statements about what Yarris told him while they were held in
adjacent prison cells. (Am. Compl. ¶¶ 41-43.) Thus, although the
Amended Complaint does not describe in detail when or how the

                                  15
ADAs “obtain[ed] a false statement from a jailhouse informant”
(Am. Compl. ¶ 93), the allegations relating to Catalino’s false
statements indicate that the ADAs’ involvement with Catalino’s
statements occurred after Yarris’s prosecution for those crimes had
begun. See Rose v. Bartle, 871 F.2d 331, 344-45 (3d Cir. 1989)
(granting absolute immunity where complaint alleged that
prosecutors solicited perjured testimony for use in grand jury
proceedings); Brawer v. Horowitz, 535 F.2d 830, 832-34 (3d Cir.
1976) (granting absolute immunity where complaint alleged that
federal prosecutor and witness conspired to use perjured testimony
to secure plaintiffs’ convictions). Accordingly, the ADAs are
entitled to absolute immunity from this claim.

              2.     Qualified Immunity          From      Yarris’s
                     Constitutional Claims

        Prosecutors who are not entitled to absolute immunity from
a plaintiff’s claims may nonetheless be entitled to qualified
immunity from those same claims. See Imbler, 424 U.S. at 430-31.
Here, as noted above, the ADAs moved to dismiss Yarris’s claims
on the basis of both absolute and qualified immunity. The District
Court, however, did not consider the ADAs’ qualified immunity
arguments. Instead, after ruling that the ADAs were not entitled to
absolute immunity from any of Yarris’s claims, the District Court
turned directly to the CID Detectives’ qualified immunity
arguments without addressing those of the ADAs. For this
reason—and with the benefit of our conclusions as to the ADAs’
partial entitlement to absolute immunity, supra—we will remand
this issue for the District Court to consider in the first instance.

              3.     Absolute Immunity From               Yarris’s
                     Pennsylvania Law Claims

       The Amended Complaint also alleges that the ADAs’
actions violated certain of Yarris’s rights under Pennsylvania law,
which he describes as his “rights to be free from unlawful arrest,
malicious prosecution and unlawful incarceration, defamation,
assault, battery, negligent and intentional infliction of emotional
distress, intimidation, abuse of public trust and public office,
breach of fiduciary and governmental trust, invasion of privacy,
unlawful restraint, abuse of process, misuse of process, and

                                16
malicious prosecution, and to due process of law under the
Pennsylvania Constitution and laws of the Commonwealth of
Pennsylvania.” (Am. Compl. ¶ 99.) The ADAs sought dismissal
of these claims on the basis of state law immunity.

       In denying absolute immunity generally, the District Court
did not rule on the ADAs’ request for immunity from Yarris’s
Pennsylvania law claims. Rather, the District Court’s analysis
focused solely on the ADAs’ immunity with respect to the alleged
violations of Yarris’s rights under the United States Constitution.
Because the District Court did not rule on whether the ADAs are
immune from Yarris’s Pennsylvania law claims, we will remand
this issue for consideration by the District Court in the first
instance.

       B.     The Criminal Investigation Division Detectives

       The Amended Complaint alleges that the CID Detectives
also engaged in conduct that violated Yarris’s rights under the
Fourth, Sixth, Eighth, and Fourteenth Amendments.7 The CID
Detectives moved to dismiss each of Yarris’s claims against them
on the basis of qualified immunity.



       7
         Specifically, the Amended Complaint states that the CID
Detectives violated Yarris’s constitutional rights when they: “used
impermissible interrogation techniques including, but not limited
to, torture, trickery and deceit, and the suggestion of facts not
known to Yarris or other witnesses, to obtain false statements and
improper identifications”; “deliberately destroyed and/or withheld
highly exculpatory information from [Yarris]”; “concoct[ed] a false
and fabricated confession”; “obtain[ed] a false statement from a
jailhouse informant”; “fail[ed] to disclose investigatory materials
and exculpatory evidence”; and “fail[ed] to release physical
evidence for DNA testing in a prompt manner.” (Am. Compl.
¶¶ 91, 92, 93.)
        In addition, the Amended Complaint alleges that the CID
Detectives’ conduct violated Yarris’s Fifth Amendment rights. As
noted above, however, the District Court dismissed that claim, and
that ruling is not now on appeal.

                                17
       Qualified immunity shields state officials from suit when
their conduct “does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow, 457 U.S. at 818. Courts must undertake a two-
step inquiry to determine whether a state official is entitled to
qualified immunity. First, the court must determine whether the
facts alleged show that the defendant’s conduct violated a
constitutional or statutory right. See Saucier v. Katz, 533 U.S. 194,
201 (2001). If so, the court must then determine whether the
constitutional or statutory right allegedly violated by the defendant
was “clearly established” at the time the violation occurred. See id.
If the court concludes that the defendant’s conduct violated a
clearly established constitutional or statutory right, it must deny the
defendant the protection afforded by qualified immunity. See id.;
see also Williams v. Bitner, 455 F.3d 186, 190-91 (3d Cir. 2006).

       In denying the motion to dismiss the claims against the CID
Detectives, the District Court stated the following:

       Yarris claims the Criminal Investigator Defendants,
       Martin, Pfeifer and Siti intentionally destroyed
       evidence by retaining exculpatory DNA evidence in
       a paper bag under a desk, used impermissible
       interrogation techniques and coercion to obtain false
       statements, inflicted serious physical injuries and
       prosecuted Yarris without probable cause after they
       determined the killer’s gloves would not fit him. If
       Yarris’s claims are true, the Defendants knew their
       conduct violated Yarris’s constitutional rights and
       they are not entitled to qualified immunity.

Yarris, 2005 U.S. Dist. LEXIS 4131, at *13. On appeal, the CID
Detectives argue that the constitutional rights they allegedly
violated were not “clearly established” at the time of their conduct.
(Appellants’ Reply Br. at 13.)

       The Amended Complaint alleges that the CID Detectives
violated Yarris’s Fourteenth Amendment rights when they refused
to turn over exculpatory evidence. In Brady v. Maryland, the
Supreme Court held that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process

                                  18
where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” 373
U.S. 83, 87 (1963). However, “the Brady duty to disclose
exculpatory evidence to the defendant applies only to a
prosecutor.” Gibson v. Superintendent of N.J. Dep’t of Law &
Public Safety-Div. of State Police, 411 F.3d 427, 442 (3d Cir.
2005). Nonetheless, “police officers and other state actors may be
liable under § 1983 for failing to disclose exculpatory information
to the prosecutor.” Id. at 443; see also McMillian v. Johnson, 88
F.3d 1554, 1567 (11th Cir. 1996) (“Investigators satisfy their
obligations under Brady when they turn exculpatory and
impeachment evidence over to the prosecutors.”); Walker v. City
of New York, 974 F.2d 293, 299 (2d Cir. 1992) (“[T]he police
satisfy their obligations under Brady when they turn exculpatory
evidence over to the prosecutors.”).

        The CID Detectives argue that they are entitled to qualified
immunity from Yarris’s claim that they failed to turn the gloves
recovered from the crime scene over to the ADAs prior to trial.
We agree. According to the Amended Complaint, before
presenting to the jury a photograph depicting a pair of men’s gloves
inside the victim’s vehicle, “[t]he prosecution had already
determined . . . after assessing the size of Yarris’ hands, that the
gloves would not have fit his hands.” (Am. Compl. ¶ 56.) Thus,
Yarris’s own allegations indicate that the CID Detectives had
complied with their disclosure duties by giving the gloves to the
ADAs prior to trial. Accordingly, the Amended Complaint does
not allege a constitutional violation with respect to the pre-trial
disclosure of the gloves and, therefore, the CID Detectives are
entitled to qualified immunity from this claim.

        The CID Detectives also argue that they are entitled to
qualified immunity from Yarris’s claim that they mishandled and
failed to preserve evidence that could be used for DNA testing.
The Supreme Court’s decision in Arizona v. Youngblood, 488 U.S.
51 (1988), establishes the standard for determining whether law
enforcement officials have infringed on a defendant’s due process
rights by failing to preserve “evidentiary material of which no more
can be said than that it could have been subjected to tests, the
results of which might have exonerated the defendant.” Id. at 57.
The Youngblood Court held that “unless a criminal defendant can

                                19
show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due
process of law.” 488 U.S. at 58. “The presence or absence of bad
faith by the police for purposes of the Due Process Clause must
necessarily turn on the police’s knowledge of the exculpatory value
of the evidence at the time it was lost or destroyed.” Id. at 57 n.*.

        At the outset, we note that Youngblood addresses law
enforcement officials’ constitutional duty to preserve evidence
prior to conviction, whereas Yarris’s claim is based on the CID
Detectives’ post-conviction conduct. We nonetheless believe that
the Supreme Court’s application of the Due Process Clause in
Youngblood guides our analysis here. However, the Youngblood
decision did not indicate that it was limited to its temporal context,
as it sought to govern applicability of the Due Process Clause in
“what might loosely be called the area of constitutionally
guaranteed access to evidence” and resolve the violation it
described broadly as “the failure of the State to preserve
evidentiary material.” 488 U.S. at 55, 57. We agree with the
reasoning of Judge King of the Fourth Circuit in his concurring
opinion in Harvey v. Horan, in which he discussed prisoners’ post-
conviction due process rights:

       In essence, the concept of due process requires that
       the government treat its citizens in an evenhanded
       and neutral manner; thus the targeting of specific
       individuals with the purpose of frustrating the
       exercise of their lawful rights contradicts the basic
       premise of the constitutional guarantee.

               Thus, given that prisoners possess a right of
       effective access to the court system, a governmental
       decision to deny access to evidence with the
       intent—and with the effect—of preventing a prisoner
       from exercising his right of effective access to the
       court system would violate due process. To permit
       a state official to target a particular prisoner and to
       deliberately frustrate that prisoner’s ability to take
       advantage of post-conviction legal options
       contravenes the essence of fair and impartial
       procedural justice.

                                 20
278 F.3d 370, 387 (4th Cir. 2002) (internal citations omitted)
(King, J., concurring in part).

        The CID Detectives contend that their alleged mishandling
of DNA samples does not amount to a constitutional violation
because they could not have acted in bad faith insofar as DNA
testing was still in its infancy at the time of the alleged violation.
We disagree. To establish bad faith, Yarris must allege only that
the CID Detectives knew “of the exculpatory value of the evidence
at the time it was . . . destroyed.” Youngblood, 488 U.S. at 57 n.*.
According to the Amended Complaint, CID Detective Pfeifer and
another detective “refused to relinquish custody of the evidence,
kept the evidence in a paper bag, in a non-controlled environment,
under a detective’s desk, where it was allowed to rot and to be
destroyed as useful evidence.” (Am. Compl. ¶ 70.) These
allegations indicate that the CID Detectives consciously acted to
frustrate Yarris’s request for DNA testing; therefore, the Amended
Complaint’s allegations concerning the CID Detectives’ conduct
satisfy Youngblood’s bad faith requirement. See id. at 58
(explaining that due process is violated when “the police
themselves by their conduct indicate that the evidence could form
a basis for exonerating the defendant”).

       Furthermore, we find that the due process right at issue here
was “clearly established” at the time of the alleged violation. The
Supreme Court decided Youngblood on November 29, 1988.
Although the Amended Complaint does not indicate precisely
when the evidence was hidden under a desk and allowed to rot, the
sequence of the allegations suggests that the conduct occurred
between some time in 1988 and November of 1989. (See Am.
Compl. ¶¶ 68-72.) Thus, accepting Yarris’s allegations as true and
drawing all reasonable inferences in his favor, we conclude that
even though DNA testing may have been less common at the time
of the alleged mishandling of evidence, the CID Detectives were
given fair warning that their conduct was unconstitutional.8


       8
         We note that even if the CID Detectives’ alleged conduct
occurred prior to Youngblood, the constitutional right at issue
nonetheless may have been clearly established. See Hope v.
Pelzer, 536 U.S. 730, 741 (2002) (explaining that in some cases “a

                                 21
Accordingly, the CID Detectives are not entitled to qualified
immunity from this claim at this stage of the proceedings.

        Yarris also alleges that the CID Detectives violated his
constitutional rights by using trickery or deceit to obtain false
evidence against him. As noted, the introduction in evidence of
the allegedly false testimony was the work of prosecutors—not the
CID Detectives—and is covered by absolute prosecutorial
immunity. Michaels v. New Jersey, 222 F.3d 118, 121-22 (3d Cir.
2000). We perceive no support—and Yarris has identified no
support—for the proposition that the use of impermissible
interrogation techniques in securing statements prior to their use in
court constituted an independent violation of Yarris’s
constitutional rights. See Chavez v. Martinez, 538 U.S. 760
(2003); Michaels v. New Jersey, 222 F.3d 118 (3d Cir. 2000);
Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir. 1994). In the
absence of such a violation, the CID Detectives are entitled to
qualified immunity with respect to these claims.

                         IV. Conclusion

       For the foregoing reasons, the order of the District Court
will be affirmed in part, reversed in part, and this case will be
remanded for further proceedings consistent with this opinion.




general constitutional rule already identified in the decisional law
may apply with obvious clarity to the specific conduct in question,
even though the very action in question has [not] previously been
held unlawful”) (internal quotation marks and citations omitted).

                                 22
