                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAR 17 2000
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 WILLIAM McNALLY,

           Plaintiff-Appellant,
 v.                                                       No. 99-1410
 ARAPAHOE COUNTY DISTRICT                             (D.C. No. 99-Z-1563)
 ATTORNEY OFFICE; EIGHTEENTH                                (D.Colo.)
 JUDICIAL DISTRICT; JAMES J.
 PETERS; JOHN ALBERT
 TOPOLNICKI, JR.; TIMOTHY R.
 NEFF; JEAN MARIE POWERS;
 ROBERT R. GALLAGHER, JR., in
 their professional capacities,

           Defendants-Appellees.


                              ORDER AND JUDGMENT          *




Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is



       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
therefore ordered submitted without oral argument.

      William McNally appeals the dismissal of his claims against the Arapahoe

County District Attorney’s Office (“Office”). McNally sued the Office and

several prosecutors – including James Peters, John Topolnicki, Timothy Neff,

Jean Marie Powers, and Robert Gallagher – for alleged civil rights violations

under 28 U.S.C. § 1983. The district court ruled that the defendants were

absolutely immune from liability and dismissed the case. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.

                                           I

      McNally alleges the following facts. In June 1995, Colorado state trooper

Robert Kladde stopped, detained, searched, and arrested McNally on Interstate 25

“at the place where Colorado Four-Seventy merges onto the interstate highway in

Douglas County, Colorado.” Plaintiff’s Complaint ¶ 5. Trooper Kladde

subsequently signed an affidavit stating that (1) McNally got out of the vehicle as

soon as it was stopped; and (2) before he searched the vehicle, Kladde handcuffed

and frisked McNally for safety reasons.    Id. ¶ 7. Based on items recovered by

Kladde from the vehicle, the Office later filed several drug and weapons charges

against McNally in Douglas County court.

      The county court conducted a motions hearing in February 1996.

According to McNally, Kladde and others testified falsely at the hearing. Kladde


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allegedly perjured himself by stating, among other things, that he frisked McNally

before searching the vehicle.     Id. ¶ 14. Colorado state trooper C.D. Blanscet also

testified at the hearing. Blanscet stated both that officers perform “drug

recognition evaluations” using a variety of techniques, and that the evaluations

follow a “standardized method.”        Id. ¶ 15. This purportedly “false and

inconsistent” testimony was used “to make certain that the drug recognition

evaluation [of McNally] was admitted as evidence even though the examination

was improperly performed.”       Id.

       According to McNally, additional improprieties allegedly occurred in April

1996. At that time the Office “made an agreement” with McNally’s attorney that

“either a Frye hearing would transpire or two of the charges would be dismissed.”

Id. ¶ 18. The Office later refused to honor the terms of the bargain, “took the

position that the agreement never existed,” and “misled” both the court and

McNally. Id. As a result, “no action was taken” by the Office “with regard to the

agreement.” Id. ¶ 20.

       McNally’s criminal trial commenced in May 1996. Trooper Kladde

appeared as a witness for the prosecution at trial,   id. ¶ 22, as did trooper William

Herrington. Like trooper Kladde’s and trooper Blanscet’s, trooper Herrington’s

testimony was, in McNally’s view, false. Herrington apparently testified about

examining McNally’s tongue and eyes after the arrest, even though “there was not


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ample time” for trooper Herrington to perform such an exam.         Id. ¶ 24. At the

conclusion of the trial, a jury convicted McNally on all charges.        Id. ¶ 25.

       McNally appealed.     Id. ¶ 26. Throughout the appeal, the Office refused to

acknowledge any misconduct and “continue[d] to deny that [it] had in any way

violated” McNally’s constitutional rights.       Id. ¶¶ 27-28. McNally alleges that an

appeals court reversed his conviction on one charge, and ordered a new trial on

another. Id. ¶ 29. In November 1998, the Office voluntarily dismissed the

remaining charge.    Id. ¶ 48. That same day, avers McNally, “following a hearing

pursuant to Rule Thirty-Five of the Colorado Rules of Criminal Procedure,” the

trial court overturned “the remaining convictions” against him.          Id. ¶ 49. Instead

of re-trying McNally, the Office dismissed all pending charges.          Id. ¶ 50.

       In August 1999, McNally filed this § 1983 action. McNally alleges that

Neff, the attorney who handled the motions hearing, and Powers, the attorney who

handled the trial, (1) knew that trooper Kladde’s testimony was false,        id. ¶¶ 14,

22; (2) knew that trooper Blanscet’s testimony was false,      id. ¶¶ 15, 23; (3) knew

that trooper Herrington’s testimony was false,      id. ¶ 24; and (4) misrepresented

and failed to honor the agreement reached with McNally’s counsel.            Id. ¶¶ 18, 20-

21. McNally alleges that Topolnicki, the chief deputy district attorney,

wrongfully ignored this misconduct by filing an appellate brief.         Id. ¶¶ 27-28.

McNally further alleges that Gallagher and Peters, as district attorneys, were


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“responsible for all actions undertaken by” and had imputed knowledge of the

attorneys who handled his case.     Id. ¶¶ 51-52.

       The district court granted McNally leave to proceed in forma pauperis, and

then dismissed his complaint sua sponte. Construing McNally’s pro se complaint

liberally under Haines v. Kerner , 404 U.S. 519, 520-21 (1972) and        Hall v.

Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991), the court nonetheless concluded

that the defendants were shielded from liability in their individual capacities by

the doctrine of absolute immunity. Order and Judgment of Dismissal at 1-3. The

court similarly held that McNally’s claims against the defendants in their official

capacities were barred by the Eleventh Amendment.          Id. at 3-4. The court

invoked 28 U.S.C. § 1915(e)(2)(B)(iii), which directs a trial court to “dismiss the

case at any time” if the action “seeks monetary relief against a defendant who is

immune from such relief.”

                                             II

       Because McNally does not challenge the district court’s Eleventh

Amendment ruling, see Appellant’s Opening Brief at 5-6, the sole issue on appeal

is whether the defendants are entitled to absolute immunity.        “In determining

immunity, we accept the allegations of [the plaintiff’s] complaint as true.”        Kalina

v. Fletcher , 118 S. Ct. 502, 505 (1997). Accordingly, our standard of review is de

novo. See Gagan v. Norton , 35 F.3d 1473, 1475 (10th Cir. 1994) (“We review de


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novo a district court’s conclusion on the question of absolute immunity.”);       cf.

Perkins v. Kansas Dep’t of Corrections    , 165 F.3d 803, 806 (10th Cir. 1999)

(stating that this court reviews de novo a dismissal pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii)).

       State prosecutors are absolutely immune from § 1983 suits based on

activities “intimately associated with the judicial phase of the criminal process.”

Imbler v. Pachtman , 424 U.S. 409, 410, 430-31 (1976). While “the actions of a

prosecutor are not absolutely immune merely because they are performed by a

prosecutor,” Buckley v. Fitzsimmons , 509 U.S. 259, 273 (1993),

       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. Those acts must include the professional
       evaluation of the evidence assembled by the police and appropriate
       preparation for its presentation at trial or before a grand jury after a
       decision to seek an indictment has been made.

Id. ; see also Kalina , 118 S. Ct. at 507 (noting “the importance to the judicial

process of protecting the prosecutor when serving as an advocate in judicial

proceedings”).   Imbler and its progeny distinguish between “the prosecutor’s role

as advocate for the State, which demands absolute immunity,” and the

prosecutor’s performance of investigative and administrative functions, which

“warrants only qualified immunity.”      Hunt v. Bennett , 17 F.3d 1263, 1267 (10th

Cir. 1994).


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      McNally attempts to portray the defendants’ purported wrongdoing as

“investigative,” but his own allegations reveal that the defendants’ conduct is

protected by the doctrine of absolute immunity. There is no allegation that the

defendants themselves fabricated evidence. Instead, McNally asserts that the

defendants knowingly permitted several witnesses to present false testimony. The

defendants’ evaluation and use of this testimony in court proceedings are

absolutely privileged. Likewise, the defendants were acting as advocates in

judicial proceedings when they decided to file an appellate brief and to allegedly

disregard the agreement reached with McNally’s counsel. No case cited by

McNally holds to the contrary.

      We DENY McNally’s motion to proceed in forma pauperis and AFFIRM

the district court’s dismissal of McNally’s complaint.

                                             Entered for the Court

                                             Mary Beck Briscoe
                                             Circuit Judge




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