                   United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 17-1667
                          ___________________________

                               Mark Eugene Woodworth

                          lllllllllllllllllllll Plaintiff - Appellant

                                              v.

                                     Kenneth Hulshof

                         lllllllllllllllllllll Defendant - Appellee

            Lyndel Robertson; Rochelle Koehly; Brandon Patrick Hagan

                               lllllllllllllllllllll Defendants

   William S. Lewis, in his capacity as Personal Representative of the Estate of
                                 Kenneth Lewis

                         lllllllllllllllllllll Defendant - Appellee

  Gary Calvert; Terry L. Deister; R. Brent Elliott; Rachel Smith; John Williams;
David Miller; Livingston County; Livingston County Sheriff's Department; City of
Chillicothe, Missouri; City of Chillicothe, Police Department; Jenny Smith; Bruce Clemonds

                               lllllllllllllllllllll Defendants
                                       ____________

                      Appeal from United States District Court
                   for the Western District of Missouri - St. Joseph
                                   ____________
                           Submitted: November 14, 2017
                               Filed: June 6, 2018
                                  ____________

Before COLLOTON and GRUENDER, Circuit Judges, and HOLMES,1 District
Judge.
                         ____________

GRUENDER, Circuit Judge.

       Mark Woodworth appeals the district court’s2 adverse grant of summary
judgment in this civil-rights action, in which he alleges that prosecutor Kenneth
Hulshof and Judge Kenneth Lewis conspired to deprive him of his constitutional
rights during criminal proceedings related to a 1990 homicide. His resulting
convictions were overturned largely due to Hulshof’s and Judge Lewis’s handling of
the case. Because both officials are entitled to absolute immunity, we affirm.

                                          I.

      The events giving rise to this case were detailed extensively during
Woodworth’s habeas proceedings before the Missouri Supreme Court. See State ex
rel Woodworth v. Denney, 396 S.W.3d 330 (Mo. banc 2013). As relevant here,3 in


      1
      The Honorable P.K. Holmes, III, Chief Judge, United States District Court for
the Western District of Arkansas, sitting by designation.
      2
      The Honorable Fernando J. Gaitin, Jr., United States District Judge for the
Western District of Missouri.
      3
       While many facts remain in dispute, we construe the record in the light most
favorable to Woodworth and give him “the benefit of all reasonable inferences
supported by the evidence,” as we must in reviewing the grant of summary judgment
against him. See B.M. ex rel. Miller v. S. Callaway R-II Sch. Dist., 732 F.3d 882, 886
(8th Cir. 2013); Reasonover v. St. Louis Cty., 447 F.3d 569, 578 (8th Cir. 2006).

                                         -2-
November 1990, two of Woodworth’s neighbors were shot while sleeping at their
home in rural Livingston County, Missouri. Lyndel Robertson survived despite
sustaining multiple gunshot wounds to the face, but his wife Catherine died from her
injuries. Although Lyndel did not have a clear recollection of the attack, he initially
accused Brandon Thomure, his daughter’s ex-boyfriend, and insisted that charges be
brought against him. At some point, however, Lyndel abandoned this theory, and the
investigation stalled due to the absence of credible evidence.

       As the months passed, Lyndel became increasingly frustrated with the lack of
progress in identifying the assailant. Thus, in June 1991, he hired private investigator
Terry Deister to look into the matter. At the time, Deister was also assisting Lyndel
with an unrelated civil lawsuit involving Woodworth’s father. Deister almost
immediately focused his attention on Woodworth, who was sixteen at the time of the
shootings. From there, Deister went on to play an outsized role in the official
investigation, gaining access to the sheriff’s investigatory files and convincing the
chief deputy to treat Woodworth as the prime suspect. Eventually, with Deister
spurring the investigation, law enforcement discovered forensic evidence that
supported his theory of Woodworth’s guilt.

       Lyndel presented these findings to Livingston County Prosecuting Attorney
Doug Roberts, who was not convinced that there was sufficient evidence to bring
charges against Woodworth. This reluctance prompted Lyndel to send a letter to
Judge Lewis requesting that Roberts “be released of his duty” as to the matter. Judge
Lewis provided a copy of this letter to Roberts, who vehemently objected to the
characterization that he had a “lack of enthusiasm” for the case. He also suggested
that Lyndel was unreliable given that he originally accused Thomure. Nevertheless,
in a letter dated October 5, 1993, Roberts disqualified himself and asked that Judge
Lewis appoint the Missouri Attorney General’s Office (“AGO”) to handle the matter.




                                          -3-
       Two days later, Judge Lewis appointed the AGO as special prosecutor and
convened a grand jury. He also sent a letter to then-Assistant Attorney General
Hulshof detailing these developments. Enclosed with the letter was the appointment
order, as well as a copy of Lyndel’s letter requesting Roberts’s removal and Roberts’s
response (collectively, the “Lewis Letters”). As revealed at subsequent proceedings,
these documents contained both impeachment and exculpatory evidence relevant to
Woodworth’s defense. For example, Judge Lewis admitted that it was Lyndel’s
request that prompted him to convene the grand jury, casting doubt on the impartiality
of the process. The Roberts letter also made clear that Lyndel had originally accused
Thomure, undermining his credibility as a witness against Woodworth.

       Even before receiving the Lewis Letters, Hulshof was aware of the
investigation, as Judge Lewis had called him on at least one previous occasion to
discuss the matter and to inquire about the AGO’s process for selecting special
prosecutors. During these discussions, Judge Lewis also indicated his preference that
Hulshof handle the matter due to his familiarity with Livingston County. However,
an AGO supervisor made the final decision to assign Hulshof to the investigation.

       After his appointment, Hulshof familiarized himself with the case by reviewing
the investigatory file and speaking with several witnesses. He immediately noticed
some “pretty unusual” circumstances surrounding the investigation, including the
involvement of a private investigator. Notwithstanding these irregularities, Hulshof
presented evidence to the grand jury against only Woodworth, who was ultimately
indicted on a variety of charges. Judge Lewis thereafter presided over the hearing at
which Woodworth was certified to stand trial as an adult.

      In 1995, a jury convicted Woodworth of all charges, which included
second-degree murder, first-degree assault, first-degree burglary, and two counts of
armed criminal action. The Missouri Court of Appeals later reversed these
convictions because the trial court excluded evidence implicating Thomure as an


                                         -4-
alternative suspect. See State v. Woodworth, 941 S.W.2d 679, 700 (Mo. Ct. App.
1997). However, Woodworth was convicted of the same crimes at a second trial.
Judge Lewis was not involved in either of these trials, and Hulshof’s involvement
ended after he secured a conviction at the first trial.

       Years later, Woodworth learned of the existence of the Lewis Letters from a
reporter, and on the basis of this new evidence, he filed a habeas petition with the
Supreme Court of Missouri. See Denney, 396 S.W.3d at 336. That tribunal appointed
a special master to take evidence and make preliminary findings. After spending more
than a year on the case, the special master “strongly recommend[ed]” vacating
Woodworth’s conviction, concluding that the State had committed at least two Brady
violations by failing to disclose the Lewis Letters and evidence that implicated
Thomure. Id. The special master’s report also highlighted other irregularities with
the investigation and initial prosecution, including conflicts of interest involving
Judge Lewis’s personal attorney4 and Woodworth’s original defense counsel.5 The
court adopted the special master’s findings in full and vacated Woodworth’s second
conviction in light of the Brady violations. Id. at 347. Although the State
subsequently initiated a third case against Woodworth, it dismissed all charges after
ballistics evidence was excluded due to chain-of-custody problems.

      Upon his release from prison, Woodworth brought this action pursuant to 42
U.S.C. § 1983 against Hulshof, Judge Lewis, and a number of other individuals and


      4
        As the district court explained, attorney Brent Elliott represented Lyndel’s
daughter in adult-abuse proceedings against Thomure and allegedly consulted on
Deister’s investigation before Judge Lewis appointed him to represent a juvenile
officer at the hearing where Woodworth was certified to be tried as an adult.
      5
       Woodworth’s original defense counsel, Richard McFadin, simultaneously
represented another criminal defendant who wrote to Judge Lewis, Hulshof, and the
Livingston County grand jury offering evidence that implicated Woodworth,
seemingly in exchange for a more lenient sentence.

                                         -5-
entities involved in the investigation and prosecution of the case. By the time the
district court considered Hulshof’s and Judge Lewis’s motions for summary judgment,
however, they were the only defendants remaining, and there were only two claims
left against them. In Count I of the operative complaint, Woodworth asserted that
Hulshof and Judge Lewis deprived him of his due-process rights by concealing
potentially exculpatory evidence, including the Lewis Letters. In Count IV,
Woodworth claimed that Hulshof and Judge Lewis conspired to deprive him of his
constitutional rights by agreeing to present false evidence concerning Lyndel’s
original identification of Thomure as the shooter. The district court granted summary
judgment to Hulshof and Judge Lewis on both counts, concluding that Woodworth’s
theory of the case lacked factual support and that absolute prosecutorial immunity,
absolute judicial immunity, and qualified immunity otherwise barred his claims.
Woodworth timely appealed.

                                          II.

       “We review de novo the district court’s grant of summary judgment, viewing
all evidence and reasonable inferences in the light most favorable to the nonmoving
party.” Reasonover v. St. Louis Cty., 447 F.3d 569, 578 (8th Cir. 2006). A party is
entitled to summary judgment if there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
“Evidence, not contentions, avoids summary judgment,” and we may affirm “for any
reason supported by the record, even if it differs from the rationale of the district
court.” Reasonover, 447 F.3d at 578-79.

       Although most public officials are entitled only to qualified immunity in civil-
rights cases, the Supreme Court has recognized that some officials perform “special
functions” that merit absolute immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 268-
69 (1993). In determining whether an official is entitled to absolute immunity, the
Court has adopted a “functional approach,” looking to “the nature of the function


                                         -6-
performed, not the identity of the actor who performed it.” Id. at 269. Applying this
approach, we find both Hulshof and Judge Lewis absolutely immune.

                                           A.

        We first consider Woodworth’s claim that the district court erred in granting
Hulshof’s motion for summary judgment. The Supreme Court has long recognized
that “prosecutors are absolutely immune from liability under § 1983 for their conduct
in ‘initiating a prosecution and in presenting the State’s case’ insofar as that conduct
is ‘intimately associated with the judicial phase of the criminal process.’” Burns v.
Reed, 500 U.S. 478, 486 (1991) (quoting Imbler v. Pachtman, 424 U.S. 409, 430-31
(1976)). This immunity extends to “actions preliminary to the initiation of a
prosecution and actions apart from the courtroom” but not to “administrative duties
and those investigatory functions that do not relate to . . . the initiation of a
prosecution or for judicial proceedings.” Buckley, 509 U.S. at 273-74. A prosecutor
claiming immunity “bears the burden of showing that such immunity is justified for
the function in question.” Id. at 269. On the record before us, we conclude that
Hulshof is entitled to immunity as to the two counts remaining against him.

       In Count I, Woodworth alleged misconduct that relates exclusively to Hulshof’s
role as special prosecutor. He claimed that Hulshof concealed exculpatory evidence,
including the Lewis Letters, a chain-of-custody issue related to ballistics evidence, and
the conflict of interest involving Woodworth’s original defense counsel. As the
district court noted, however, Brady violations fall within the scope of prosecutorial
immunity. See Imbler, 424 U.S. at 431 n.34. To the extent Woodworth claims any
improprieties unrelated to Brady, we have instructed that a prosecutor is immune from
suit even if he “knowingly presented false, misleading, or perjured testimony . . . or
withheld or suppressed exculpatory evidence.” Reasonover, 447 F.3d at 580. Thus,
prosecutorial immunity bars this count because the conduct alleged was entirely
prosecutorial in nature.


                                          -7-
       Hulshof is also immune from the conspiracy charge in Count IV. Woodworth
alleged that “Hulshof engaged in improper ex parte communication with Judge Lewis
and agreed to conceal the letters Lyndel . . . had written to Judge Lewis and to
suppress evidence that Lyndel had [initially] ‘fingered’ [Thomure] as the perpetrator.”
We previously have held that “a prosecutor is absolutely immune from a civil
conspiracy charge when his alleged participation in the conspiracy consists of
otherwise immune acts.” See id. As noted above, the presentation of false testimony
and the suppression of evidence are prosecutorial acts that fall within the scope of
immunity, see id., and Hulshof’s ex parte communications with Judge Lewis were
likewise “intimately associated with the judicial phase of the criminal process,” see
Burns, 500 U.S. at 486. Thus, the district court correctly found Hulshof immune as
to this count as well.

        On appeal, Woodworth attempts to sidestep this precedent by arguing that,
because Hulshof allegedly entered this conspiracy before his appointment as special
prosecutor, his actions at that time could not have been prosecutorial in nature. Yet,
even assuming that immunity does not apply when a prosecutor enters into a
conspiracy before being appointed to a case, Woodworth offers nothing but
speculation to show that Hulshof participated in a conspiracy, much less that he did
so before his appointment. Woodworth makes much of the fact that Judge Lewis’s
letter to Hulshof refers to “various telephone conversations” the two had prior to
Hulshof’s appointment. From this, he contends,“[i]t is reasonable to infer that
Hulshof and Lewis did not need several ‘various’ telephone conversations to discuss
the simple issue of the AGO’s case assignment procedure, but instead had substantive
discussions of the facts of the case.” We will not make this inferential leap. The only
evidence Woodworth points to is Judge Lewis’s reference to various pre-appointment
conversations with Hulshof, but the mere fact that these conversations occurred is
insufficient for a reasonable jury to find the existence of a conspiracy. See Larson by
Larson v. Miller, 76 F.3d 1446, 1455-56 (8th Cir. 1996) (en banc) (finding no
reasonable basis for inferring the existence of a conspiracy, even though defendants


                                         -8-
indisputably met and discussed the allegedly unconstitutional conduct). Woodworth
also suggests that Hulshof’s conduct as prosecutor can be used to infer the existence
of a prior conspiracy. However, as the Eleventh Circuit explained in Rowe v. City of
Ft. Lauderdale, “acts for which a prosecutor enjoys absolute immunity may not be
considered as evidence of the prosecutor’s membership in a conspiracy for which the
prosecutor does not have immunity.” 279 F.3d 1271, 1282 (11th Cir. 2002). Were
it otherwise, “the vigorous and fearless performance of the prosecutor’s duty that is
essential to the proper functioning of the criminal justice system would be unduly
chilled.”6 Id. (internal quotation marks omitted).

       Thus, after examining the record before us, we find that Hulshof is entitled to
absolute prosecutorial immunity because the only supported instances of misconduct
occurred after he was appointed special prosecutor and were “intimately associated
with the judicial phase of the criminal process.” See Burns, 500 U.S. at 486.

                                         B.

      We next consider Woodworth’s argument that the district court erred in
granting Judge Lewis’s motion for summary judgment. “[G]enerally, a judge is
immune from a suit for money damages.” Mireles v. Waco, 502 U.S. 9, 9 (1991) (per
curiam). As the Supreme Court has explained:


      6
        The three other cases on which Woodworth relies are readily distinguishable
because they involve prosecutors acting alongside law enforcement in a purely
investigatory role. See McGhee v. Pottawattamie Cty., 547 F.3d 922, 933 (8th Cir.
2008); Fields v. Wharrie, 740 F.3d 1107, 1111-12 (7th Cir. 2014); Zahrey v. Coffey,
221 F.3d 342, 347 (2d Cir. 2000). There is no evidence that Hulshof served in such
a capacity, for example, by becoming “intensely involved in the [sheriff’s]
investigation, even though he was not yet assigned any role in the prosecution.” See
McGhee, 547 F.3d at 926 (internal quotation marks omitted). Rather, he looked into
the case only after his appointment in preparation for grand jury proceedings—a task
that falls within the scope of his prosecutorial duties. See Buckley, 509 U.S. at 273.

                                         -9-
      Although unfairness and injustice to a litigant may result on occasion, it
      is a general principle of the highest importance to the proper
      administration of justice that a judicial officer, in exercising the authority
      vested in him, shall be free to act upon his own convictions, without
      apprehension of personal consequences to himself.

Id. at 10 (internal quotation marks omitted). Indeed, “judicial immunity is not
overcome by allegations of bad faith or malice.” Id. at 11. Rather, as we previously
have noted, “A judge is immune from suit . . . in all but two narrow sets of
circumstances.” Schottel v. Young, 687 F.3d 370, 373 (8th Cir. 2012). “First, a judge
is not immune from liability for nonjudicial actions, i.e., actions not taken in the
judge’s judicial capacity. Second, a judge is not immune for actions, though judicial
in nature, taken in the complete absence of all jurisdiction.” Id.

        Because Woodworth does not claim that Judge Lewis acted absent jurisdiction,
judicial immunity applies unless his alleged conduct involved nonjudicial acts. “An
act is a judicial act if it is one normally performed by a judge and if the complaining
party is dealing with the judge in his judicial capacity.” Id. As the Supreme Court has
cautioned, conduct does not lose its judicial nature solely because a judge has erred
or exceeded his authority. Mireles, 502 U.S. at 12. Were it otherwise, the doctrine
of judicial immunity would afford only the barest protection. Therefore, to determine
whether an act is judicial, we consider “the particular act’s relation to a general
function normally performed by a judge,” not the propriety of the act itself. Id. at 13.
Based on the conduct alleged in Woodworth’s two remaining counts against Judge
Lewis, we find the district court correctly concluded that any improprieties on his part
qualify as judicial acts.

       Judge Lewis was acting pursuant to his role as a judge with respect to the
allegations in Count I that he concealed exculpatory evidence—namely, the Lewis
Letters and the conflict of interest involving Woodworth’s original defense counsel.
This claim consists entirely of acts “normally performed by a judge.” See Schottel,

                                          -10-
687 F.3d at 373. Properly framed, the relevant inquiry is whether Judge Lewis’s
handling of evidence and his failure to disclose exculpatory evidence fell within the
scope of his judicial duties. Judge Lewis came upon the relevant evidence through the
judicial acts of appointing a special prosecutor, convening a grand jury, and presiding
over a juvenile-certification hearing. His authority to conduct these activities is
undisputed. See State v. Swartz, 517 S.W.3d 40, 54 (Mo. Ct. App. 2017) (power to
appoint a special prosecutor); Mo. Rev. Stat. § 540.021.5 (discretionary authority to
convene a grand jury); id. § 211.071 (discretionary power to order a juvenile-
certification hearing). Further, as the district court noted, the forwarding of
correspondence to defense attorneys—or the failure to do so—was likewise a judicial
act.7 We also note that Woodworth does not dispute that he was “dealing with the
judge in his judicial capacity” at all relevant times. See Schottel, 687 F.3d at 373.
Thus, even if true, the allegations in Count I are insufficient to defeat judicial
immunity.

       Similarly, Woodworth’s conspiracy claim in Count IV involved only judicial
acts. Specifically, he claimed that “[c]ircumstances indicate . . . Lewis recruited
Hulshof, and Hulshof agreed to join the conspiracy by presenting a false version of
the facts.” But again, the process of appointing a special prosecutor falls squarely
within a judge’s duties. See Swartz, 517 S.W.3d at 54. Further, like the parallel
conspiracy charge against Hulshof, there is no evidence to support the claim that
Judge Lewis participated in a conspiracy extending beyond his official role, for
unsubstantiated “[a]llegations of conspiracy between judge and prosecutor to
predetermine the outcome of a judicial proceeding are insufficient to overcome th[eir


      7
       To the extent Woodworth suggests that the concealment of evidence does not
qualify as a judicial act, applicable precedent forestalls this framing of alleged judicial
misconduct. See, e.g., Mireles, 502 U.S. at 12 (explaining that, if the judicial-act
inquiry were limited to particular acts of misconduct, “then any mistake of a
judge . . . would become a ‘nonjudicial’ act, because an improper or erroneous act
cannot be said to be normally performed by a judge”).

                                           -11-
respective] immunities.” See Ashelman v. Pope, 793 F.2d 1072, 1079 (9th Cir. 1986)
(en banc); see also Moses v. Parwatikar, 813 F.2d 891, 893 (8th Cir. 1987) (“Clearly
a judge who conspires to violate a person’s constitutional rights acts maliciously or
corruptly. However, the need to preserve the judge’s independence requires a grant
of absolute immunity.”). Therefore, Judge Lewis is entitled to judicial immunity for
this count, as well.

       On appeal, Woodworth attempts to avoid judicial immunity by identifying two
purportedly nonjudicial acts undertaken by Judge Lewis. First, Woodworth claims
that Judge Lewis “abandoned his duty to act as an impartial tribunal and assumed the
role of a prosecutor.” As support, he cites the following section of the special
master’s report:

      Caught up in his quarrel with Prosecutor Roberts, Judge Lewis lost sight
      of his judicial sense of fairness. In effect, he became a prosecutor. He
      analyzed the crimes with which to charge Woodworth and the Statutes
      of Limitation for those crimes; he called a grand jury based upon an ex
      parte letter that he got from one of the victims . . . ; he gratuitously
      criticized Roberts before the grand jury, setting an improper tone for a
      fair grand jury process; he appointed a grand jury forem[a]n with whom
      he had, at a minimum, a prior business relationship; he presided over the
      juvenile certification hearing wherein the Juvenile Officer was
      represented by an attorney who, at the same time, personally represented
      him; and, then, when disqualified, he designated the judge who would
      ultimately presided [sic] over the ensuing trials.

Seizing on this passage, Woodworth argues that Judge Lewis forfeited judicial
immunity by virtue of assuming the role of prosecutor.

       Yet the report’s conclusion cannot be taken as literally as Woodworth suggests.
We discern only two acts in the above excerpt that are even remotely prosecutorial in
nature: (1) identifying potential charges and (2) calculating the relevant statutes of
limitations. But Judge Lewis took both steps to apprise Hulshof of the status of the

                                        -12-
case; the determinations were in no way binding on Hulshof, nor did they guarantee
that a prosecution would follow. Thus, Judge Lewis cannot be said to have
effectuated a prosecution. This is a far cry from the conduct at issue in Lopez v.
Vanderwater, 620 F.2d 1229 (7th Cir. 1980)—the lone case Woodworth cites
rejecting a claim of judicial immunity. In Lopez, a judge detained one of his former
rental-property tenants at gunpoint, had him arrested, wrote out charges against him,
completed a plea-waiver form and entered a guilty plea without his consent, and then
sentenced him to 8 months’ imprisonment. See id. at 1231-33. Notwithstanding this
brazen conduct, the Seventh Circuit found the judge immune as to the arraignment,
conviction, and sentencing of the former tenant. However, it held that he was
ineligible for immunity as to his “prosecutorial acts,” which included the decision to
initiate charges and the completion of a charging form. Id. at 1235-37. As the
Eleventh Circuit later explained in distinguishing Lopez, the key to the partial loss of
immunity in that case was that the landlord-judge “initiated charges not as a result of
a case brought before [him] by the parties, but as a result of events in [his] private,
nonjudicial li[fe], events in which [he] had a personal stake.” See Harris v. Deveaux,
780 F.2d 911, 915 (11th Cir. 1986). Here, the mere involvement of Judge Lewis’s
personal attorney, which may be sufficient to create a conflict of interest, is not a
personal, financial stake of the sort involved in Lopez. More importantly, it was
Hulshof—not Judge Lewis—who was solely responsible for formulating and filing
charges. Thus, Woodworth’s judge-as-prosecutor theory fails because Judge Lewis
did not formally act as a prosecutor like the landlord-judge in Lopez.

      In a second attempt to overcome the district court’s finding of judicial
immunity, Woodworth emphasizes that Judge Lewis’s ex parte communications with
Lyndel, Hulshof, and Judge Lewis’s personal attorney violated the Code of Judicial
Ethics. However, Woodworth does not claim that these conversations pertained to
matters disconnected from Judge Lewis’s duties as a judge, and the ex parte nature of
a communication does not transform it into a nonjudicial act, even where such
communications constitute a breach of professional ethics rules. See Nystedt v. Nigro,


                                         -13-
700 F.3d 25, 31-32 (1st Cir. 2012); Dellenbach v. Letsinger, 889 F.2d 755, 761-62
(7th Cir. 1989).

       Therefore, on the record before us, we see no basis for reversing the grant of
summary judgment to Judge Lewis. Any evidence of misconduct relates directly to
his official role as a judge, and as a result, he is entitled to the absolute immunity
accorded to that office.

                                         III.

    Accordingly, we affirm the grant of summary judgment because absolute
immunity bars Woodworth’s claims against both Hulshof and Judge Lewis.
                   ______________________________




                                        -14-
