               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 12a0215n.06
                                                                                       FILED
                                          No. 10-4182
                                                                                  Feb 23, 2012
                         UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                              FOR THE SIXTH CIRCUIT


WILLIAM DRAKE, Father of Brandon Drake;          )
ANGIE DRAKE, Mother of Brandon Drake;            )
BRANDON DRAKE,                                   )
                                                 )
       Plaintiffs-Appellants,                    )
                                                 )
v.                                               ) ON APPEAL FROM THE UNITED
                                                 ) STATES DISTRICT COURT FOR THE
CHARLES HOWLAND; MORROW                          ) SOUTHERN DISTRICT OF OHIO
COUNTY, c/o Morrow County                        )
Commissioners; RODNEY K. CLINGER,                )
Chairman; OLEN D. JACKSON, Vice                  )
Chairman; TOM HARDEN,                            )
                                                 )
       Defendants-Appellees.                     )
                                                 )


       Before: MERRITT and COOK, Circuit Judges; COX, District Judge.*


       COOK, Circuit Judge. Plaintiffs-Appellants William and Angie Drake, individually and as

parents and natural guardians of their child, Brandon Drake, appeal the district court’s grant of

judgment on the pleadings in favor of Defendant-Appellee Charles Howland, a Morrow County,

Ohio, prosecutor. In 2007, Howland prosecuted ten-year-old Brandon Drake for unlawful sexual

conduct with a minor child. After a judge dismissed the case against Brandon with prejudice, the




       *
       The Honorable Sean F. Cox, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 10-4182
Drake et al. v. Howland et al.


Drakes brought a 42 U.S.C. § 1983 claim against Howland for malicious prosecution. The district

court found Howland entitled to absolute immunity. We affirm the district court’s judgment.


                                                 I.


       The Drakes’ complaint does not name the accuser, but in August 2007 someone claimed that

ten-year-old Brandon Drake had unlawful sexual contact with his five-year-old cousin. Brandon

denied the accusation and offered an innocent explanation: he and the purported victim were

wrestling when the victim’s brother pulled down Brandon’s pants and the victim charged at his

midsection. A flurry of accusations and denials followed, and the case eventually drew the attention

of prosecutor Howland.


       Beginning with the families of both Brandon and the victim, the controversy expanded to

involve a widening circle of public officials. Following the initial allegation of sexual abuse, the

victim’s grandmother began posting signs in Edison, Ohio, warning of a “kid predator,” and the

victim’s mother complained of Brandon’s behavior to Brandon’s school counselor. Concerned by

the defamatory signs, the Drakes met with Edison Chief of Police Jon Edwards to discuss the

accusation. After investigating, Edwards determined that no probable cause justified charging

Brandon with a crime, but nevertheless referred the matter to Children and Family Services

(“Children Services”). A few weeks later, a Children Services Investigator interviewed the victim

and issued a report finding that “sexual abuse was indicated.” Despite the findings, Children



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Services elected not to pursue charges; instead, the agency recommended counseling for Brandon

and only supervised contact between Brandon and the victim.


       Three days after Children Services issued its report finding sexual abuse, the alleged victim’s

mother filed a complaint with the Morrow County Sheriff accusing Brandon of unlawful sexual

contact. A detective of the Morrow County Sheriff’s Office interviewed Brandon, Brandon repeated

his story about wrestling with the victim, and the detective recommended that no charges be brought.

Three months later, apparently disregarding the detective’s recommendation, Morrow County

prosecutor Howland charged Brandon with Gross Sexual Imposition, a third degree felony, in the

Juvenile Division of the Morrow County Court of Common Pleas (the “juvenile court”). Howland

initiated his prosecution of Brandon by filing a criminal complaint with the juvenile court. Central

to the Drakes’ arguments on appeal, Howland signed and swore “upon information and belief” to

the allegations of the criminal complaint. Brandon formally denied the charges filed against him.


       During the discovery phase of the criminal trial, the juvenile court ordered a “Psychosexual

Evaluation” of Brandon. After conducting the court-ordered evaluation, a doctor concluded that

Brandon lacked the “experiential factors” to commit sexual assault. Undeterred by the doctor’s

findings, Howland filed a notice of supplemental discovery and declared his intention to question

the Children Services Investigator who determined that Brandon had sexual contact with the victim.

Nevertheless, the juvenile court dismissed the case against Brandon with prejudice shortly after

receiving the report.


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       Upon dismissal of the case against Brandon, the Drakes instituted this § 1983 action against

Howland and various Morrow County officials, alleging that Howland’s malicious prosecution of

Brandon violated Brandon’s “constitutional and federal rights.” Finding that the doctrine of absolute

prosecutorial immunity shielded Howland from the Drake’s § 1983 claim, the district court

dismissed the federal claim and declined to exercise supplemental jurisdiction over the remaining

state law claims. The Drakes appeal.


                                                 II.


A. Standard of Review


       We review de novo a district court’s determination that absolute immunity protects a

defendant from § 1983 liability. See Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir.

2009). Likewise, we review de novo a district court’s grant of judgment on the pleadings. See

Tucker v. Middleburg–Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008). “For purposes of a motion

for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing

party must be taken as true, and the motion may be granted only if the moving party is nevertheless

clearly entitled to judgment.” Id. (quoting JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577,

581 (6th Cir. 2007) (internal citation and quotation marks omitted)).


B. Analysis




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       Generally, prosecutors are immune from liability under § 1983 for prosecutorial functions

intimately associated with initiating or presenting the State’s case. See Imbler v. Pachtman, 424 U.S.

409, 427-28 (1976). But absolute immunity does not shelter a prosecutor’s conduct unrelated to

advocacy. See Burns v. Reed, 500 U.S. 478, 492 (1991) (giving legal advice); Buckley v.

Fitzsimmons, 509 U.S. 259, 276-78 (1993) (holding a press conference); Kalina v. Fletcher, 522 U.S.

118, 129-31 (1997) (acting as a complaining witness). Courts deem these latter acts to be

“investigative” or “administrative,” rather than prosecutorial, and therefore protected only by

qualified immunity. See Van de Kamp v. Goldstein, 555 U.S. 335, 342-43 (2009).


       The Drakes challenge the district court’s absolute immunity finding on two fronts: first, they

argue that Howland’s act of signing and swearing to the criminal complaint against Brandon was the

act of a witness—not a prosecutor—and is therefore unprotected by absolute immunity. Second,

they submit that absolute immunity does not protect prosecutorial decisions made in the absence of

probable cause to arrest.


       We begin by addressing the Drakes’ first argument, that “Howland’s decision to swear and

sign the criminal complaint” constituted an administrative or investigative act, unshielded by

absolute immunity. In response to this argument, Howland claims that he acted as an advocate in

preparing, signing, and filing the complaint.


       Both are partially correct. Absolute immunity shields from § 1983 liability both Howland’s

decision to file the complaint and his preparation and filing of it, but not his swearing to the truth

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of the complaint’s contents. A prosecutor’s differing roles warrant different protection. When a

prosecutor acts as advocate for the state in deciding to prosecute and bringing the complaint, absolute

immunity holds. See Ireland v. Tunis, 113 F.3d 1435, 1447 (6th Cir. 1997). But vouching for the

truth of statements in a complaint is the act of a witness, and only qualified immunity shields a

testifying prosecutor from liability. See Kalina, 522 U.S. at 129-31; see also Adams v. Hanson, 656

F.3d 397, 402 (6th Cir. 2011) (“[A] prosecutor is entitled to only qualified immunity when she acts

as a complaining witness by making sworn statements to the court in support of a criminal

complaint.” (citing Kalina, 522 U.S. at 129-31)).


          Kalina provides a helpful analogue. In Kalina, a prosecutor filed a “Certification for

Determination of Probable Cause” summarizing the evidence supporting a charge along with an

unsworn information and motion for an arrest warrant. Kalina, 521 U.S. at 121. The prosecutor

“personally vouched for the truth of the facts set forth in the certification,” and the court issued an

arrest warrant based on the prosecutor’s sworn statement. Id. at 121. The certification included two

factual inaccuracies, and the trial court eventually dismissed the charges against the defendant. Id.

at 121-22. Following the dismissal, the former defendant brought a § 1983 claim “based on [the

prosecutor’s] alleged violation of his constitutional right to be free from unreasonable seizures.” Id.

at 122.


          The Court found that absolute immunity protected the prosecutor’s activities in connection

with preparing and filing all three documents, including “her drafting of the certification, her


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determination that the evidence was sufficiently strong to justify a probable-cause finding, her

decision to file charges, and her presentation of the information and the motion to the court.” Id. at

130. But the Court denied absolute immunity for the prosecutor’s act of offering sworn statements

in the certification, holding that “[t]estifying about facts is the function of the witness, not of the

lawyer.” Id. at 130.


       Arguably, Howland similarly acted as a witness. In swearing to the contents of the complaint

against Brandon, Howland complied with the Ohio Rules of Juvenile Procedure’s requirement that

a complaint be “made under oath” and include “the essential facts that bring the proceeding within

the jurisdiction of the [juvenile] court.” Ohio R. Juvenile P. 10(B). Further, Howland himself did

not need to make the factual assertions in the complaint; the Ohio Rules of Juvenile Procedure allow

“any person having knowledge of a child who appears to be a . . . delinquent” to file a complaint.

Ohio R. Juvenile P. 10(A); see also Kalina, 522 U.S. at 129 (noting that “neither federal nor state

law made it necessary for the prosecutor to make [the factual assertion]”).


       On the other hand, the complaint contained skeletal factual allegations, not factual assertions

grounded on personal knowledge. Howland’s allegations included only Brandon’s birth date, the

names and address of Brandon’s parents, and a one-sentence description of Brandon’s conduct

parroting the language of the criminal statute he allegedly violated. Nothing in the Drakes’

complaint or in Howland’s complaint to the juvenile court suggests that Howland uncovered the

facts in the complaint through his own investigation. Instead, Howland swore to the allegations


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“upon information and belief”—all that is required by the Ohio Rules of Juvenile Procedure. Ohio

R. Juvenile P. 10(B).


       Even assuming, however, that Howland’s act of vouching for these allegations undercuts his

immunity, the Drakes aim their § 1983 action elsewhere. The crux of their claim is that Howland’s

prosecution of Brandon infringed Brandon’s right to be free of prosecution without probable cause.

The Drakes do not claim that Howland included false statements in the complaint that he filed in

juvenile court, that Howland undertook his own investigation of Brandon’s case, or that Brandon

was seized in violation of his Fourth Amendment rights. Essentially, the Drakes’ complaint faults

Howland for pursuing criminal charges against Brandon despite the investigators’ unanimous

assessment to the contrary. This is why the district court found that absolute immunity insulates

Howland from the Drakes’ § 1983 claim; the Drakes’ malicious prosecution claim impugned

Howland’s decision to prosecute, not the propriety of the complaint. As the court put it,


       [T]he essence of Plaintiffs’ § 1983 claim is that impropriety lay in Howland’s actual
       decision to file and then maintain criminal charges against Brandon in the face of
       allegedly conflicting evidence; a prosecutor’s decision to bring and maintain charges
       is squarely within the doctrine of absolute prosecutorial immunity. In this regard,
       Plaintiffs’ complaint does not allege anything improper about the actual criminal
       complaint, or list this document as the source of the alleged injuries. Nor does
       Plaintiffs’ complaint allege any involvement on Howland’s part in activities, such as
       preliminary investigations, that would potentially be beyond the scope of absolute
       immunity.


       We agree. Though Howland acted as a witness by swearing to the complaint, the Drakes’

§ 1983 claim targets Howland’s decision to file suit. As the district court notes, the Drakes do not

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list the complaint as the source of their injuries or allege that Howland undertook an investigation

that exceed the scope of absolute immunity, thus distinguishing this case from Kalina and its

progeny in this circuit. See, e.g., Cooper v. Parrish, 203 F.3d 937, 948-49 (6th Cir. 2000) (denying

absolute immunity to a prosecutor who allegedly denied plaintiff procedural and substantive due

process by executing a raid on their property after swearing to a recitation of facts based on his own

investigation).


       In an attempt to establish that the complaint itself caused Brandon harm, the Drakes argue

that the complaint functioned as an instruction to arrest Brandon, an administrative/investigative act

protected only by qualified immunity. See Ireland, 113 F.3d at 1445. Relying on this rule, the

Drakes analogize Howland’s actions to the defendants in Prince v. Hicks, 198 F.3d 607 (6th Cir.

1999), and Harris v. Bornhorst, 513 F.3d 503 (6th Cir. 2008). In both cases, we affirmed the denial

of absolute immunity to prosecutors who counseled on the legality of an arrest or who instructed

police to arrest a suspect. See Prince, 198 F.3d at 615; Harris, 513 F.3d at 510-11.


       The comparison collapses, however, when scrutinized under the Ohio Rules of Juvenile

Procedure. Those rules provide only for the issuance of a summons requesting that a party appear

and answer the allegations in the complaint. See Ohio R. Juvenile P. 15. Unlike an arrest warrant,

a summons requiring a defendant to appear and answer charges in court does not alone constitute

an arrest, or even a seizure under the Fourth Amendment. See DePiero v. City of Macedonia, 180

F.3d 770, 789 (6th Cir. 1999) (holding that a traffic ticket that required a plaintiff to appear at


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hearing and answer to charges was not a “seizure”); Burg v. Gosselin, 591 F.3d 95, 101 (2d Cir.

2010) (“We therefore are joining a consensus of appellate courts in holding that a pre-arraignment,

non-felony summons requiring no more than a later court appearance does not constitute a Fourth

Amendment seizure.”); Bielanski v. County of Kane, 550 F.3d 632, 642 (7th Cir. 2008) (“No court

has held that a summons alone constitutes a seizure, and we conclude that a summons alone does

not equal a seizure for Fourth Amendment purposes.”). Accordingly, we are not persuaded that

Howland’s complaint functioned as an instruction to arrest Brandon, or that Brandon suffered an

arrest as a result of the complaint.


        Finally, the Drakes contend that a prosecutor’s actions garner no absolute immunity

protection in the absence of probable cause to arrest a suspect. Quoting Buckley, the Drakes argue

that “[a] prosecutor neither is, nor should consider himself to be, an advocate before he has probable

cause to have anyone arrested.” 509 U.S. at 274. The district correctly dismissed this argument by

citing Buckley’s footnote immediately following the statement that the Drakes believe supports their

position. The footnote forecloses the Drakes’ argument: “The reason that we grant [absolute

immunity] for the latter function (malicious prosecution) is that we have found a common-law

tradition of immunity for a prosecutor’s decision to bring an indictment, whether he has probable

cause or not.” Id. 274 n.5 (emphasis added); see also Gregory v. City of Louisville, 444 F.3d 725,

740 (6th Cir. 2006) (“The Buckley Court dismissed the argument that probable cause was a dividing

line for potential liability attendant to prosecutors’ actions.”). Like the district court, we reject the

Drakes’ reading of Buckley.

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                                             III.


       For these reasons, we AFFIRM the district court’s judgment on the pleadings.




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