     Case: 11-40286     Document: 00511683373         Page: 1     Date Filed: 12/02/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         December 2, 2011

                                     No. 11-40286                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



KELLY FERRIS,

                                                  Plaintiff–Appellant
v.

ROBERT VITITOW,

                                                  Defendant–Appellee



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 6:08-CV-373


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        This case arises out of a grand jury proceeding wherein Kelly Ferris, the
Appellant, was indicted for perjury stemming from his conduct during a Justice
of the Peace (“JP”) trial about a traffic ticket that Ferris received. Because we
find that Ferris has not met his burden of showing that there is a dispute over
material facts, we find that Robert Vititow, the prosecutor who brought the




        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-40286

indictment and the Appellee, is entitled to absolute immunity. Therefore, we
AFFIRM the district court’s grant of summary judgment to Vititow.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      In 2005, a Texas state trooper cited Ferris for speeding. Ferris contested
the citation, and a trial was held in the JP court for Rains County, Texas.
Vititow, the Rains County Attorney, prosecuted the case on behalf of the county.
It was Ferris’s argument in the JP trial that his truck was a different model year
from the one written on his speeding citation from the state trooper. The JP jury
found Ferris not guilty of speeding.
      Following the JP trial, Vititow conducted a tax, title, and license search
on Ferris’s vehicle and discovered that, in fact, the model year of Ferris’s truck
was the same as the trooper noted on Ferris’s citation. Vititow decided to
convene a grand jury to obtain an indictment against Vititow for perjury before
the JP court. Only one witness testified before the grand jury—the JP who
presided over the traffic trial. The grand jury returned a two-count indictment
for perjury against Ferris. Ferris was subsequently arrested.
      Before the perjury trial commenced in state court, Ferris objected to
Vititow’s prosecution of him and asked for Vititow’s recusal from the case, to
which Vititow eventually acquiesced. The two-count perjury indictment was
then dismissed, but a new three-count indictment was obtained from a different
grand jury by a different attorney against Ferris for perjury. A trial was held on
the three-count indictment, and the jury found Ferris not guilty of perjury.
      Ferris then brought a § 1983 suit against Vititow in district court alleging
violations of Ferris’s rights under the Fourth Amendment (false arrest) and
Fourteenth Amendment (bad faith prosecution). See 42 U.S.C. 1983. Vititow
moved to dismiss based on prosecutorial immunity, which the district court
denied. Limited discovery was then conducted as to immunity issues, and
Vititow moved for summary judgment. The district court granted summary

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                                  No. 11-40286

judgment to Vititow because qualified immunity protected him from suit
stemming from his conduct in investigating the perjury charge and absolute
immunity protected him from suit stemming from his conduct before the grand
jury. Ferris timely appealed the district court’s ruling but only as to Vititow’s
immunity for his grand jury conduct.
                             II. JURISDICTION
      We have jurisdiction to review Ferris’s claim under 28 U.S.C. § 1291.
Although Ferris appealed the orders granting summary judgment and not the
final judgment order from the district court, we still have jurisdiction because
the orders that Ferris appealed “end[ed] the litigation on the merits and le[ft]
nothing for the court to do but execute the judgment.” Marshall v. Kan. City S.
Ry. Co., 378 F.3d 495, 499 (5th Cir. 2004) (per curiam) (internal quotation marks
omitted).
                        III. STANDARD OF REVIEW
      We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court. Hernandez v. Yellow Transp., Inc., 641
F.3d 118, 124 (5th Cir. 2011). Summary judgment is appropriate where the
movant shows that there is no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law. Id. (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); Fed. R. Civ. P. 56(a)). If the movant
“meets the initial burden of demonstrating that there exists no genuine issue of
material fact,” then absent rebutting evidence by the non-movant, summary
judgment should be granted. Id. (citing Celotex Corp. v. Catrett, 477 U.S.
317[, 322] (1986)).    In making the summary judgment determination, all
inferences are drawn in favor of the non-movant. Id.
                              IV. DISCUSSION
      “[A] prosecutor is absolutely immune when [he] acts in [his] role as an
advocate for the state by initiating and pursuing prosecution.” Beck v. Tex. State

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Bd. of Dental Exam’rs, 204 F.3d 629, 637 (5th Cir. 2000); see also Imbler v.
Pachtman, 424 U.S. 409, 430 (1976). This immunity extends to a “prosecutor’s
conduct before a grand jury.” Burns v. Reed, 500 U.S. 478, 490 (1991). This
immunity does not, however, extend to “administrative or investigatory
functions that are not an integral part of the judicial process.” Rykers v. Alford,
832 F.2d 895, 897 (5th Cir. 1987). When determining if a particular action fits
within the prosecutor’s absolute immunity, we look to the “nature of the function
performed.”      Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (internal
quotation marks omitted). One action to which absolute prosecutorial immunity
does not extend is the prosecutor giving his own sworn testimony. Kalina v.
Fletcher, 522 U.S. 118, 120 (1997).
      Ferris argues that there would have been no way for the first grand jury
to have returned the two-count perjury indictment without Vititow testifying
and therefore, Vititow should not have been granted immunity. Ferris based
this argument on the fact that only one witness was called before the first grand
jury—the JP who presided over Ferris’s traffic trial. At Ferris’s perjury trial,
that JP testified that Ferris only discussed the model year discrepancy during
his cross-examination questioning of other witnesses and during his closing
argument. Neither of these times was Ferris under oath, a key element under
the Texas perjury statute under which Ferris was charged. See Tex. Penal Code
§ 37.02(a)(1).    Ferris argues that we should assume that the JP testified
consistently with his trial testimony during the grand jury proceedings. That
is, that Ferris never discussed model year under oath. From this, Ferris reasons
that absent testimony that he stated, under oath, that his truck was a different
model year from the one that the trooper recorded on his citation, there was no
basis for the grand jury to indict Ferris unless Vititow also gave testimony to the
grand jury. There is, however, no evidence in the record of any of this, and



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consequently, Ferris cannot meet his burden of proving a material factual
dispute. Hernandez, 641 F.3d at 124.
                            V. CONCLUSION
     For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment to Vititow.
     AFFIRMED.




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