                                                                    [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                           FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                             ________________________ ELEVENTH CIRCUIT
                                                             JULY 16, 2010
                                   No. 09-11897               JOHN LEY
                             ________________________           CLERK


                        D. C. Docket No. 07-00022-CV-WLS-1

CHARLES A. REHBERG,


                                                             Plaintiff-Appellee,

                                       versus

JAMES P. PAULK,
in his individual capacity,
KENNETH B. HODGES, III,
in his individual capacity and
in his official capacity as District
Attorney of Dougherty County
KELLY R. BURKE, in his
individual capacity,


                                                        Defendants-Appellants,

DOUGHERTY COUNTY,

                                                                    Defendant.
                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Georgia
                         _________________________

                                    (July 16, 2010)

                    ON PETITION FOR PANEL REHEARING

Before CARNES, HULL and ANDERSON, Circuit Judges.

HULL, Circuit Judge:

      Upon consideration of Plaintiff-Appellee’s petition for rehearing and to the

extent it seeks panel rehearing, we vacate the prior opinion in this case, issued on

March 11, 2010 and published at 598 F.3d 1268 (11th Cir. 2010), and substitute

the following opinion in its place. Plaintiff-Appellee’s petition for panel rehearing

is granted in part and denied in part.

      In this § 1983 action, Plaintiff Charles Rehberg sued former District

Attorney Kenneth Hodges, specially appointed prosecutor Kelly Burke, and Chief

Investigator James Paulk, alleging federal claims for malicious prosecution,

retaliatory investigation and prosecution, evidence fabrication, and conspiracy to

violate Rehberg’s constitutional rights. Defendants Hodges, Burke, and Paulk, in

their individual capacities, appeal the district court’s denial of absolute and

qualified immunities. After review and oral argument, we affirm in part and

                                           2
reverse in part.

               I. FACTUAL AND PROCEDURAL BACKGROUND

       We review Rehberg’s version of the events as alleged in his complaint,

accepting them as true.1

A.     The Investigation

       From September 2003 to March 2004, Plaintiff Rehberg sent anonymous

faxes to the management of Phoebe Putney Memorial Hospital (the “hospital”).

The faxes criticized and parodied the management and activities of the hospital.

       Defendant Hodges, then the District Attorney of Dougherty County,

Georgia, and Defendant Paulk, the Chief Investigator in the District Attorney’s

Office, investigated Rehberg’s actions as a “favor” to the hospital, to which

Hodges and Paulk are alleged to have political connections. Rehberg alleges

Hodges and Paulk lacked probable cause to initiate a criminal investigation of him.

       From October 2003 to February 2004, Defendants Hodges and Paulk

prepared a series of subpoenas on Hodges’s letterhead and issued the subpoenas to

BellSouth and Alltel (later Sprint), requesting Rehberg’s telephone records. “Mr.

Paulk also prepared and issued a subpoena to Exact Advertising, the Internet



       1
         In reviewing a Rule 12(b)(6) motion to dismiss, we accept as true the factual allegations
in the complaint and all reasonable inferences therefrom. Jackson v. Okaloosa County, Fla., 21
F.3d 1531, 1534 (11th Cir. 1994).

                                                 3
service provider of one of Mr. Rehberg’s email accounts, and obtained Mr.

Rehberg’s personal e-mails that were sent and received from his personal

computer.” Compl. ¶ 37. Although no grand jury was impaneled at the time, the

subpoenas purported to require appearance before a Dougherty County grand jury.

Rehberg’s case was not presented to a grand jury until December 14, 2005.

      Defendant Paulk gave the results of the subpoenas, consisting of Rehberg’s

personal emails and phone records, to private civilian investigators, who allegedly

directed the substance of the subpoenas. These civilian investigators paid the

District Attorney’s Office for Rehberg’s information, often making payments

directly to BellSouth and the other subpoenaed parties, allegedly to pay debts of

the District Attorney’s Office.

      After receiving unfavorable press coverage of his relationships with the

hospital, Hodges recused himself from prosecuting Rehberg. Burke was appointed

a special prosecutor in Hodges’s place. Hodges continued to supervise Paulk and

remained in communication with Burke throughout the investigation, but he “never

served as the actual prosecutor of the charges against Mr. Rehberg before the

Grand Jury.”

B.    First Indictment

      On December 14, 2005, a grand jury indicted Rehberg on charges of



                                          4
aggravated assault, burglary, and six counts of “harassing phone calls.” Burke was

the prosecutor, and Paulk was the sole complaining witness against Rehberg before

the grand jury. The first indictment alleged Rehberg assaulted Dr. James Hotz

after unlawfully entering Dr. Hotz’s home. In fact, Rehberg has never been to Dr.

Hotz’s home, and Dr. Hotz never reported an assault or burglary to law

enforcement agencies. Paulk later admitted that he never interviewed any

witnesses or gathered evidence indicating Rehberg committed an aggravated

assault or burglary. And the alleged “harassing” phone calls to Dr. Hotz all were

related to the faxes Rehberg had already sent criticizing the hospital.

      The City of Albany Police Department2 did not participate in the

investigation. Paulk stated that he and Hodges initiated and handled the

investigation on their own because they lacked confidence in the police

department’s ability to handle the investigation.

      Rehberg contested the legal sufficiency of the first indictment. On February

2, 2006, Defendant Burke dismissed and nol-prossed the first indictment.

C.    Second Indictment

      On February 15, 2006, Defendants Burke and Paulk initiated charges before

a second grand jury. Paulk and Dr. Hotz appeared as witnesses. The grand jury



      2
          The City of Albany, Georgia, is in Dougherty County.

                                                5
issued a second indictment, charging Rehberg with simple assault against Dr. Hotz

on August 22, 2004 and five counts of harassing phone calls.

      Rehberg contested the sufficiency of the second indictment too. Rehberg

alleged he was “nowhere near Dr. Hotz on August 22, 2004,” and “[t]here was no

evidence whatsoever that Mr. Rehberg committed an assault on anybody as he was

charged.” At a pretrial hearing on April 10, 2006, Defendant Burke announced the

second indictment would be dismissed, but Burke did not dismiss it. On July 7,

2006, the state trial court ordered it dismissed.

D.    Third Indictment

      On March 1, 2006, Defendants Burke and Paulk appeared before a third

grand jury and secured a third indictment against Rehberg, charging him with

simple assault and harassing telephone calls. At some unspecified time, Rehberg

was arrested and briefly detained pursuant to an arrest warrant issued as a result of

the second and third indictments.

      On May 1, 2006, the state trial court issued two orders dismissing all charges

against Rehberg because the third indictment did not sufficiently charge Rehberg

with a criminal offense.

      The three indictments against Rehberg were widely reported in the local

press. Defendant Burke conducted interviews with the press and issued statements



                                            6
saying: (1) “[I]t is never free speech to assault or harass someone, no matter who

they are and no matter how much you don’t like them,” and (2) “It would be

ludicrous to say that an individual has the right to go onto someone else’s property

and burn a cross under the guise of free speech, which is tantamount to what these

defendants are claiming.”

E.     District Court Proceedings

       Plaintiff Rehberg filed a verified complaint against Defendants Hodges,

Burke, and Paulk, in their individual capacities. Rehberg’s complaint alleges ten

counts, including these four federal § 1983 claims at issue in this appeal:3 (1)

malicious prosecution against Hodges and Paulk in violation of Rehberg’s Fourth

and Fourteenth Amendment rights (Count 6); (2) retaliatory investigation and

prosecution against Hodges and Paulk, for their alleged retaliation against Rehberg

because he exercised First Amendment free speech rights (Count 7); (3)

participation in evidence fabrication, calling Paulk to give false testimony to the

grand jury, and giving false statements to the media against Burke only (Count 8);

and (4) conspiracy to violate Rehberg’s constitutional rights under the First,



       3
         Rehberg’s complaint also alleges state-law claims for negligence (Counts 1 & 2) and
invasion of privacy (Counts 3 & 4) against Paulk, which the district court refused to dismiss. At
this juncture, Defendant Paulk has not appealed the district court’s rulings on those state-law
claims. At oral argument, counsel for Defendant Paulk confirmed to the Court that the state-law
claims in Counts 1, 2, 3, and 4 against Paulk were not on appeal.

                                                7
Fourth, and Fourteenth Amendments, against Hodges, Burke, and Paulk (Count

10).4

        Defendants Hodges, Burke, and Paulk moved to dismiss these counts

pursuant to Federal Rule of Civil Procedure 12(b)(6). They claimed absolute

immunity, and, alternatively, qualified immunity. The district court denied the

Defendants’ motions.

        Defendants Hodges, Burke, and Paulk, in their individual capacities, appeal

the district court’s denials of immunity as to Rehberg’s above four federal

constitutional claims.5 We discuss absolute and qualified immunity and then

Rehberg’s claims.

                                  II. IMMUNITY LAW

A.      Absolute Immunity

        Traditional common-law immunities for prosecutors apply to civil cases

        4
        Plaintiff Rehberg also sued Dougherty County and Hodges, in his official capacity.
Rehberg withdrew Count 5 against Dougherty County in response to its claim of sovereign
immunity. Rehberg has not appealed the district court’s dismissal of Count 9 against Dougherty
County, which effectively dismissed Count 9 against Hodges because an official capacity claim
against Hodges is another moniker for a claim against Dougherty County, Hodges’s employer.
See Brown v. Neumann, 188 F.3d 1289, 1290 (11th Cir. 1999). Thus only Counts 6, 7, 8, and 10
are involved in this appeal.
        5
         The denial of absolute or qualified immunity on a motion to dismiss is an appealable
interlocutory order. See Jones v. Cannon, 174 F.3d 1271, 1280-81 (11th Cir. 1999); Maggio v.
Sipple, 211 F.3d 1346, 1350 (11th Cir. 2000) (citing Mitchell v. Forsyth, 472 U.S. 511, 530, 105
S. Ct. 2806, 2817-18 (1985)). We review de novo the district court’s denial of a motion to
dismiss on the basis of absolute or qualified immunity. Maggio, 211 F.3d at 1350; Scarbrough
v. Myles, 245 F.3d 1299, 1302 (11th Cir. 2001).

                                               8
brought under § 1983. Imbler v. Pachtman, 424 U.S. 409, 427-28, 96 S. Ct. 984,

993-94 (1976). “[A]t common law, ‘[t]he general rule was, and is, that a

prosecutor is absolutely immune from suit for malicious prosecution.’” Malley v.

Briggs, 475 U.S. 335, 342, 106 S. Ct. 1092, 1097 (1986) (quoting Imbler, 424 U.S.

at 437, 96 S. Ct. at 998). In § 1983 actions, prosecutors have absolute immunity

for all activities that are “‘intimately associated with the judicial phase of the

criminal process.’” Van de Kamp v. Goldstein, __ U.S. __, 129 S. Ct. 855, 860

(2009) (quoting Imbler, 424 U.S. at 430, 96 S. Ct. at 995); accord Jones v. Cannon,

174 F.3d 1271, 1281 (11th Cir. 1999).

      Absolute immunity does not depend entirely on a defendant’s job title, but

involves a functional approach granting immunity based on conduct. Jones, 174

F.3d at 1282. This functional approach looks to “the nature of the function

performed, not the identity of the actor who performed it.” Buckley v.

Fitzsimmons, 509 U.S. 259, 269, 113 S. Ct. 2606, 2613 (1993); accord Imbler, 424

U.S. at 431 n. 33, 96 S. Ct. at 995 n. 33.

      Absolute immunity accordingly applies to the prosecutor’s actions “in

initiating a prosecution and in presenting the State’s case.” Imbler, 424 U.S. at

431, 96 S. Ct. at 995. Prosecutors are immune for appearances in judicial

proceedings, including prosecutorial conduct before grand juries, statements made



                                             9
during trial, examination of witnesses, and presentation of evidence in support of a

search warrant during a probable cause hearing. Burns v. Reed, 500 U.S. 478, 490-

92, 111 S. Ct. 1934, 1942 (1991); Kalina v. Fletcher, 522 U.S. 118, 126, 118 S. Ct.

502, 507-08 (1997); see also Van de Kamp, 129 S. Ct. at 861. “A prosecutor

enjoys absolute immunity from allegations stemming from the prosecutor’s

function as advocate.” Jones, 174 F.3d at 1281. Such absolute immunity also

“extends to a prosecutor’s acts undertaken . . . 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.” Id. (quotation marks omitted); accord Rowe v. City of Fort

Lauderdale, 279 F.3d 1271, 1279-80 (11th Cir. 2002) (holding prosecutor who

proffered perjured testimony and fabricated exhibits at trial is entitled to absolute

immunity, but a prosecutor who participated in the search of a suspect’s apartment

is entitled to only qualified immunity).

      If a prosecutor functions in a capacity unrelated to his role as an advocate for

the state, he is not protected by absolute immunity but enjoys only qualified

immunity. Kalina, 522 U.S. at 121, 118 S. Ct. at 505 (concluding prosecutor was

acting as a witness in personally attesting to truth of averments in a “Certification

for Determination of Probable Cause” for an arrest warrant and was not absolutely

immune for that witness act, but that prosecutor was absolutely immune for



                                           10
preparing and filing an “information charging respondent with burglary and a

motion for an arrest warrant”); Buckley, 509 U.S. at 275-77, 113 S. Ct. at 2616-18

(concluding prosecutor’s pre-indictment fabrication of third-party expert testimony

linking defendant’s boot to bootprint at murder scene and post-indictment

participation in a press conference were not protected by absolute immunity);

Burns, 500 U.S. at 496, 111 S. Ct. at 1944-45 (stating prosecutors do not enjoy

absolute immunity for giving pre-indictment legal advice to the police). A

prosecutor is not entitled to absolute immunity when he “performs the investigative

functions normally performed by a detective or police officer.” Buckley, 509 U.S.

at 273, 113 S. Ct. at 2616; accord Jones, 174 F.3d at 1281-82 (“Although

absolutely immune for actions taken as an advocate, the prosecutor has only

qualified immunity when performing a function that is not associated with his role

as an advocate for the state”); see also Malley, 475 U.S. at 340-41, 106 S. Ct. at

1096 (concluding police officer was not absolutely immune for drafting “felony

complaints” with malice and without probable cause and submitting them in

support of an application for arrest warrants).

B.    Qualified Immunity

      Qualified immunity shields government officials who perform discretionary

governmental functions from civil liability so long as their conduct does not violate



                                          11
any “clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.

2727, 2738 (1982). A government agent is entitled to immunity unless his act is

“so obviously wrong, in the light of pre-existing law, that only a plainly

incompetent officer or one who was knowingly violating the law would have done

such a thing.” Lassiter v. Ala. A&M Univ., 28 F.3d 1146, 1149 (11th Cir. 1994)

(en banc).

       To evaluate claims of qualified immunity, the Court considers whether (1)

the plaintiff has alleged a violation of a constitutional right; and (2) whether the

right was “clearly established” at the time of the defendant’s misconduct. This

two-pronged analysis may be done in whatever order is deemed most appropriate

for the case. Pearson v. Callahan, 555 U.S. ___, 129 S. Ct. 808, 821 (2009).

       With this immunity background, we turn to Rehberg’s claims.

                 III. COUNT 6 – MALICIOUS PROSECUTION

       Count 6 alleges Defendants Hodges and Paulk violated Rehberg’s Fourth

and Fourteenth Amendment rights through their “malicious prosecution” of him,

resulting in his indictment and arrest.6 Rehberg alleges that (1) Hodges and Paulk


       6
         Rehberg alleges his arrest was an unreasonable seizure. The Fourth Amendment
protection against “unreasonable” searches and seizures was made applicable to the States
through the Fourteenth Amendment. Major League Baseball v. Crist, 331 F.3d 1177, 1179 n.4
(11th Cir. 2003).

                                            12
knew there was no probable cause to indict him, and therefore they got together

with malice, fabricated evidence (i.e., Paulk’s false testimony), and decided to

present that fabricated evidence to the grand jury; (2) Paulk, at Hodges’s direction,

then testified falsely before the grand jury, resulting in Rehberg’s indictment and

arrest; and (3) Hodges and Paulk invaded Rehberg’s privacy by illegally issuing

subpoenas to BellSouth, Alltel, and Exact Advertising, without any pending

indictment and as a discovery device for private civilians. We first discuss Paulk’s

false testimony before the grand jury and then the Defendants’ pre-indictment

conduct and subpoenas.

A.    Paulk’s Grand Jury Testimony

      Even if Hodges and Paulk knew Paulk’s testimony was false, Paulk receives

absolute immunity for the act of testifying to the grand jury. Briscoe v. LaHue,

460 U.S. 325, 326, 103 S. Ct. 1108, 1111-12 (1983) (affirming that common-law

immunities granted to witnesses in judicial proceedings required giving absolute

immunity from § 1983 suit to police officer accused of giving false testimony at

trial); Burns, 500 U.S. at 492, 111 S. Ct. at 1942 (holding prosecutor was

absolutely immune for “appearance in court in support of an application for a

search warrant and the presentation of evidence at that hearing”); Jones, 174 F.3d

at 1288 (“[P]rosecutors and witnesses have absolute immunity for claims of



                                          13
conspiracy to commit perjury based on a witness’s allegedly false testimony at

trial, before a grand jury, or at a post-conviction hearing.”); Strength v. Hubert,

854 F.2d 421, 422-24 (11th Cir. 1988) (concluding investigator for state Attorney

General’s office received absolute immunity for false testimony to a grand jury, at

which the defendant investigator was the sole witness);7 Kelly v. Curtis, 21 F.3d

1544, 1553 (11th Cir. 1994) (holding detective immune for grand jury testimony).

      We recognize that Plaintiff Rehberg alleges Defendant Paulk was the sole

“complaining witness” before the grand jury. However, in Jones, “we expressly

reject[ed] carving out an exception to absolute immunity for grand jury testimony,

even if false and even if [the detective] were construed to be a complaining

witness.” Jones, 174 F.3d at 1287 n.10; see Rowe, 279 F.3d at 1285 (stating Jones

“reject[ed] an exception for the testimony of ‘complaining witnesses’”). In Jones,

this Court aligned itself with the Third Circuit’s decision in Kulwicki v. Dawson,

969 F.2d 1454, 1467 n.16 (3d Cir. 1992), which rejected the “complaining

witness” exception to absolute immunity for false grand jury testimony. Jones,

174 F.3d at 1287 n.10. The Jones Court reasoned that allowing civil suits for false

grand jury testimony would result in depositions, emasculate the confidential

nature of grand jury testimony, and eviscerate the traditional absolute immunity for



      7
          Overruled on other grounds, Whiting v. Traylor, 85 F.3d 581 (11th Cir. 1996).

                                                14
witness testimony in judicial proceedings:

              [T]his case vividly illustrates the serious problems with
              carving out such an exception and imposing civil liability
              for . . . false testimony deceiving the grand jury. To
              prove or to defend against such a claim would necessitate
              depositions from the prosecutor, the grand jury witnesses,
              and the grand jury members . . . [which], in effect, would
              emasculate both the absolute immunity for grand jury
              testimony and the confidential nature of grand jury
              proceedings. The remedy for false grand jury testimony
              is criminal prosecution for perjury and not expanded civil
              liability and damages.

Jones, 174 F.3d at 1287 n.10.8 And the Supreme Court “consistently ha[s]

recognized that the proper functioning of our grand jury system depends upon the

secrecy of grand jury proceedings.” United States v. Sells Eng’g, Inc., 463 U.S.

418, 424, 103 S. Ct. 3133, 3138 (1983) (quotation marks omitted). Based on

Jones, we reject Rehberg’s “complaining witness” exception to absolute immunity

for false grand jury testimony.9

       8
        In Mastroianni v. Bowers, 173 F.3d 1363 (11th Cir. 1999), this Court declined to decide
whether to adopt a “complaining witness” exception because there was no factual finding in that
case that the defendant Georgia Bureau of Investigation officer was equivalent to a “complaining
witness.” Id. at 1367 n.1. So Mastroianni did not answer the question presented here, but Jones
did.
       9
        Two circuits carved out a complaining-witness exception to absolute immunity for false
grand jury testimony. See, e.g., Harris v. Roderick, 126 F.3d 1189, 1199 (9th Cir. 1997) (Deputy
U.S. Marshals not absolutely immune for false testimony before a grand and petit jury); White v.
Frank, 855 F.2d 956 (2d Cir. 1988) (police officer, as the “complaining witness,” was not
absolutely immune for false grand jury testimony). These decisions rely on Malley v. Briggs,
475 U.S. at 340, 106 S. Ct. at 1096, which concluded that a police officer did not receive
absolute immunity for drawing up “felony complaints” with malice and without probable cause
and submitting them in support of an application for arrest warrants. The Supreme Court held

                                               15
B.     Hodges and Paulk’s Pre-Indictment Investigation

       Distilled to its essence, Defendants’ alleged pre-indictment conduct

(excepting the subpoenas) is this: Hodges and Paulk, acting as investigators, got

together as a favor to the hospital, with malice and without probable cause, and

made up a story about Rehberg, and then Paulk (at Hodges’s direction) told that

fake story under oath to the grand jury, leading to Rehberg’s indictment and arrest.

We already determined supra that Paulk receives absolute immunity for the actual

grand jury testimony itself. The question before us now is whether absolute

immunity applies to the alleged conspiracy decision in the investigative stage to

make up and present Paulk’s false testimony to the grand jury. Our precedent

answers this question too. See Mastroianni, 173 F.3d at 1367; Rowe, 279 F.3d at

1282; Jones, 174 F.3d at 1289.

       In Mastroianni, the plaintiff alleged defendant Yeomans, a Georgia Bureau

of Investigation agent, “engaged in a pretestimonial conspiracy to present false

evidence, for which neither absolute nor qualified immunity is available.”



similarly in Kalina v. Fletcher, 522 U.S. at 120, 129-31, 118 S. Ct. at 505, 509-10, finding a
prosecutor was not absolutely immune for acting as a witness in personally attesting to the truth
of averments in a certification affidavit supporting an application for probable cause for an arrest
warrant.
        Acknowledging White v. Frank relies on Malley, the Jones Court noted that carving out
an immunity exception for grand jury testimony would eviscerate the secrecy of grand jury
proceedings, a concern not implicated by the “felony complaints” filed to support an arrest
warrant in Malley and the personal certification for an arrest warrant in Kalina.

                                                 16
Mastroianni, 173 F.3d at 1367. This Court first stressed that “a witness has

absolute immunity from civil liability based on his grand jury testimony. See

Strength, 854 F.2d at 425, relying on Briscoe v. La Hue, 460 U.S. 325, 103 S. Ct.

1108 [ ] (1983).” Id. The Mastroianni Court then pointed out that while the

plaintiff “contend[ed] that Yeomans committed numerous acts in furtherance of a

conspiracy to present false testimony before the grand jury convened, the record

itself support[ed] such an inference only if we consider as evidence Yeomans’

testimony as it relates back to Yeomans’ pretestimonial acts and statements.”

Mastroianni, 173 F.3d at 1367. In other words, because the only evidence to show

a conspiracy in the pre-indictment phase was Yeomans’s later false grand jury

testimony, and because Yeomans was immune for that testimony, we concluded

that Yeomans was absolutely immune for conspiracy to present or give grand jury

testimony. Id. (“Because we may not consider such testimony as a factor upon

which to base Yeomans’ potential liability, we conclude that Yeomans is entitled

to absolute immunity for his actions in this case”).

      This Court subsequently applied Mastroianni in Jones and Rowe, in each

case concluding that absolute immunity applied equally both to the false testimony

itself and to the alleged conspiracies to present false testimony. Jones, 174 F.3d at

1289 (“To allow a § 1983 claim based on subornation of perjured testimony where



                                          17
the allegedly perjured testimony itself is cloaked in absolute immunity would be to

permit through the back door what is prohibited through the front”); Rowe, 279

F.3d at 1282 (“It would be cold comfort for a prosecutor to know that he is

absolutely immune from direct liability for actions taken as prosecutor, if those

same actions could be used to prove him liable on a conspiracy theory involving

conduct for which he was not immune”).

      Since Paulk receives absolute immunity for his false testimony before the

grand jury, Hodges and Paulk are similarly immune for their alleged conspiracy to

fabricate and present false testimony to the grand jury. Rowe, 279 F.3d at 1282

(“[A] witness’s absolute immunity from liability for testifying forecloses any use

of that testimony as evidence of the witness’s membership in a conspiracy prior to

his taking the stand”).

      It is important to point out that Hodges and Paulk generally would not

receive absolute immunity for fabricating evidence, because investigating and

gathering evidence falls outside the prosecutor’s role as an advocate. See Buckley,

509 U.S. at 262-64, 113 S. Ct. at 2610-11 (no immunity for prosecutor who

fabricated expert testimony linking defendant’s boot with bootprint at murder

scene); Rowe, 279 F.3d at 1281 (no immunity for fabrication of jump rope); Jones,

174 F.3d at 1289-90 (no immunity for fabrication of bootprint); Riley v. City of



                                          18
Montgomery, Ala., 104 F.3d 1247, 1253 (11th Cir. 1997) (no immunity for police

officer’s planting of cocaine). All of these cases involved a particular discrete item

of physical or expert evidence that was falsely created during the investigative

stage to link the accused to a crime.

       In contrast, there is no allegation of any physical or expert evidence that

Hodges or Paulk fabricated or planted. There is no allegation of a pre-indictment

document such as a false affidavit or false certification. Rather, Hodges and Paulk

are accused of fabricating together only the testimony Paulk later gave to the grand

jury. No evidence existed until Paulk actually testified to the grand jury. Stated

differently, the only evidence Rehberg alleges was fabricated is Paulk’s false grand

jury testimony, for which Paulk receives absolute immunity.10

       For all these reasons, we conclude Hodges and Paulk are entitled to absolute

immunity for the pre-indictment conduct of conspiring to make up and present

Paulk’s false testimony to the grand jury.

C.     Subpoenas During Investigation

       Rehberg’s allegations regarding the subpoenas to his telephone and Internet




       10
        Rehberg does not allege, for instance, that Hodges and Paulk fabricated physical
evidence linking him to Dr. Hotz’s house or convinced another witness to testify falsely about
Rehberg’s involvement. The only evidence presented to the grand jury was Paulk’s testimony
and Dr. Hotz’s testimony (which Rehberg does not allege was false).

                                               19
providers all recount pre-indictment investigative conduct by Hodges and Paulk.11

A prosecutor loses the cloak of absolute immunity by stepping out of his role as an

advocate and performing “investigative” functions more commonly performed by

law enforcement officers. Buckley, 509 U.S. at 273, 113 S. Ct. at 2616; Burns,

500 U.S. at 496, 111 S. Ct. at 1944-45; Rowe, 279 F.3d at 1280; Jones, 174 F.3d at

1285. Hodges and Paulk accordingly do not receive absolute immunity for

preparing and filing subpoenas during the investigation of Rehberg.

       Hodges and Paulk may, however, receive qualified immunity if Rehberg’s

subpoena allegations either do not state a constitutional violation or do not state a

constitutional violation that was clearly established. Pearson, 129 S. Ct. at 815-16,

821-22. Rehberg claims the subpoenas violated his Fourth Amendment right to be

free of unreasonable search and seizure.12

       In order for Fourth Amendment protections to apply, the person invoking the

protection must have an objectively reasonable expectation of privacy in the place

searched or item seized. Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 473

(1998); Katz v. United States, 389 U.S. 347, 353, 88 S. Ct. 507, 512 (1967). To



       11
        Rehberg’s complaint does not allege Defendant Burke participated in the issuance of
the subpoenas.
       12
         The Fourth Amendment provides: “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .
.” U.S. Const. amend. IV.

                                                 20
establish a reasonable expectation of privacy, the person must show (1) that he

manifested “a subjective expectation of privacy” in the item searched or seized,

and (2) a willingness by society “to recognize that expectation as legitimate.”

United States v. McKennon, 814 F.2d 1539, 1543 (11th Cir. 1987).

      The Supreme Court “consistently has held that a person has no legitimate

expectation of privacy in information he voluntarily turns over to third parties.”

Smith v. Maryland, 442 U.S. 735, 743-44, 99 S. Ct. 2577, 2582 (1979). “[T]he

Fourth Amendment does not prohibit the obtaining of information revealed to a

third party and conveyed by him to Government authorities, even if the

information is revealed on the assumption that it will be used only for a limited

purpose and the confidence placed in the third party will not be betrayed.” United

States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 1624 (1976).

      More specifically, a person does not have a legitimate expectation of privacy

in numerical information he conveys to a telephone company in the ordinary

course of business. Smith, 442 U.S. at 743-44, 99 S. Ct. at 2582 (“[E]ven if

petitioner did harbor some subjective expectation that the phone numbers he dialed

would remain private, this expectation is not one that society is prepared to

recognize as reasonable”) (quotation marks omitted); accord United States v.

Thompson, 936 F.2d 1249, 1250 (11th Cir. 1991) (“The Supreme Court has held



                                          21
that the installation of a pen register does not constitute a search under the Fourth

Amendment of the Constitution and does not warrant invocation of the

exclusionary rule.”).

      Here, Rehberg lacked a legitimate expectation of privacy in the phone and

fax numbers he dialed. Once he voluntarily provided that information to BellSouth

and Alltel (later Sprint), Rehberg lacked any further valid expectation that those

third parties would not turn the information over to law enforcement officers.

Absent a valid right of privacy, Rehberg cannot state a constitutional violation

regarding the subpoenas for his phone and fax information, and Paulk and Hodges

accordingly are entitled to qualified immunity for issuing those subpoenas to

BellSouth and Alltel.

      This case presents a closer question over whether Paulk violated Rehberg’s

Fourth Amendment rights by issuing a subpoena to Rehberg’s Internet Service

Provider (“ISP”) and obtaining “Mr. Rehberg’s personal e-mails that were sent and

received from his personal computer.” Compl. ¶ 37. This is a question of first

impression in this Circuit. Thus, we examine how other circuits have considered

privacy rights in email material, such as email addresses, Internet subscriber

information, and the contents of emails stored either on an ISP server or on a

private computer/server, or both.



                                           22
      Several circuits have concluded that a person lacks legitimate privacy

expectations in Internet subscriber information and in to/from addresses in emails

sent via ISPs. See, e.g., United States v. Perrine, 518 F.3d 1196, 1204-05 (10th

Cir. 2008) (“Every federal court to address this issue has held that subscriber

information provided to an internet provider is not protected by the Fourth

Amendment’s privacy expectation”) (collecting cases from the Fourth, Sixth, and

Ninth Circuits and district courts in West Virginia, Massachusetts, Connecticut,

Maryland, New York, and Kansas); United States v. Forrester, 512 F.3d 500, 510

(9th Cir. 2008) (“[E]-mail and Internet users have no expectation of privacy in the

to/from addresses of their messages or the IP addresses of the websites they visit

because they should know that this information is provided to and used by Internet

service providers for the specific purpose of directing the routing of information.”).

      To date only a few circuit decisions address the issue of Fourth Amendment

protection of email content. Some circuit decisions suggest in dicta that a person

loses a legitimate expectation of privacy in emails sent to and received by a third-

party recipient. In Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001), the Sixth

Circuit noted that Internet bulletin board users lack a valid Fourth Amendment

expectation of privacy in materials they voluntarily posted to a public Internet

bulletin board. Id. The Sixth Circuit reasoned that a person would lose a



                                          23
legitimate expectation of privacy in a sent email that had already reached its

recipient, analogizing an emailer to a letter-writer, whose “‘expectation of privacy

ordinarily terminates upon delivery’” of a letter. Id. (quoting United States v.

King, 55 F.3d 1193, 1196 (6th Cir. 1995)). Ultimately, however, the Sixth Circuit

did not resolve this constitutional question because it determined that the plaintiffs

had not shown a genuine issue of fact over whether the defendants actually

searched their emails, and thus could not show a Fourth Amendment violation even

assuming a privacy right had been violated. Id. at 335.13

       In United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004), the Second

Circuit cited Guest and noted that the defendant, who challenged the

constitutionality of a probation condition allowing monitoring of his computer,

“may not [] enjoy [] an expectation of privacy in transmissions over the Internet or

e-mail that have already arrived at the recipient.” Id. However, the Second Circuit

       13
          Plaintiff Rehberg points to Warshak v. United States, 490 F.3d 455 (6th Cir. 2007),
reh’g en banc granted, opinion vacated (6th Cir. Oct. 9, 2007) (criminal investigation of
plaintiff), in which a Sixth Circuit panel concluded “that individuals maintain a reasonable
expectation of privacy in e-mails that are stored with, or sent or received through, a commercial
ISP.” Id. at 473. In reaching this conclusion, the Sixth Circuit panel distinguished its circuit
precedent in Guest: “Although we stated that an e-mail sender would ‘lose a legitimate
expectation of privacy in an e-mail that had already reached its recipient,’ analogizing such an
e-mailer to ‘a letter-writer,’ this diminished privacy is only relevant with respect to the recipient,
as the sender has assumed the risk of disclosure by or through the recipient. [Guest, 255 F.3d] at
333. Guest did not hold that the mere use of an intermediary such as an ISP to send and receive
e-mails amounted to a waiver of a legitimate expectation of privacy.” Id. at 472. The Sixth
Circuit en banc subsequently vacated the Warshak opinion because the criminal investigation
was over, there was no ongoing possibility of a Fourth Amendment violation, and thus the case
was not ripe. Warshak v. United States, 532 F.3d 521 (6th Cir. 2008).

                                                  24
ultimately noted that as a probationer, the defendant would be subject to a reduced

expectation of privacy. The Second Circuit thus did not issue a constitutional

holding on the privacy rights of private citizens in email content. Id.

      The Supreme Court has not yet addressed the question of privacy rights in

email material. Plaintiff Rehberg thus relies on Supreme Court precedent on

privacy rights accorded to the contents of telephone communications. In Katz, the

Supreme Court first recognized a privacy expectation in the contents of a telephone

conversation in a closed public phone booth. Katz, 389 U.S. at 353, 88 S. Ct. at

512. In Smith v. Maryland, the Supreme Court refined that privacy expectation,

noting the distinction between the contents of a telephone call (for which a

legitimate privacy expectation exists) and the actual phone numbers dialed (no

privacy expectation). 442 U.S. at 743-44, 99 S. Ct. at 2582.

      The Supreme Court’s more-recent precedent shows a marked lack of clarity

in what privacy expectations as to content of electronic communications are

reasonable. In City of Ontario v. Quon, No. 08-1332, slip. op., 78 U.S.L.W. 4591

(U.S. June 17, 2010), the Supreme Court reversed the Ninth Circuit’s decision that

held a government employee had a reasonable expectation of privacy in text

messages sent and received by a third party. The plaintiff police sergeant sued the

City for violating his Fourth Amendment rights by obtaining and reviewing



                                          25
transcripts of personal text messages he sent and received from a pager that was

owned by the City and issued to him for work use. Id. at 1, 5. The parties disputed

whether the plaintiff, as a public employee, had an objectively reasonable

expectation of privacy in those text messages. Id. at 9-10.

      Even after the briefs of 2 parties and 10 amici curiae, the Supreme Court

declined to decide whether the plaintiff’s asserted privacy expectations were

reasonable. Id. at 9, 11-12. The Supreme Court acknowledged that the case

“touches issues of far-reaching significance.” Id. at 1. After remarking that it

“must proceed with care when considering the whole concept of privacy

expectations in communications made on electronic equipment owned by a

government employer,” the Supreme Court cautioned that “[t]he judiciary risks

error by elaborating too fully on the Fourth Amendment implications of emerging

technology before its role in society has become clear.” Id. at 10. The Supreme

Court explained: “In Katz, the Court relied on its own knowledge and experience

to conclude that there is a reasonable expectation of privacy in a telephone booth.”

Id. In contrast, the Supreme Court found “[i]t is not so clear that courts at present

are on so sure a ground” as to electronic devices. Id. Therefore, the Supreme

Court admonished that “[p]rudence counsels caution before the facts in the instant

case are used to establish far-reaching premises that define the existence, and



                                          26
extent, of privacy expectations” in communications on electronic devices. Id. The

Supreme Court specifically noted that ongoing “[r]apid changes in the dynamics of

communication and information transmission” caused similar rapid change “in

what society accepts as proper behavior.” Id. at 11.

       To underscore its disinclination to establish broad precedents as to privacy

rights vis-a-vis electronic devices and emerging technologies, the Supreme Court

explained the difficulty in determining what privacy expectations are reasonable,

stating:

             [T]he Court would have difficulty predicting how
             employees’ privacy expectations will be shaped by those
             changes or the degree to which society will be prepared
             to recognize those expectations as reasonable. Cell
             phone and text message communications are so pervasive
             that some persons may consider them to be essential
             means or necessary instruments for self-expression, even
             self-identification. That might strengthen the case for an
             expectation of privacy. On the other hand, the ubiquity
             of those devices has made them generally affordable, so
             one could counter that employees who need cell phones
             or similar devices for personal matters can purchase and
             pay for their own. And employer policies concerning
             communications will of course shape the reasonable
             expectations of their employees, especially to the extent
             that such policies are clearly communicated.

Id. at 11. The Supreme Court again eschewed “a broad holding,” finding it

“preferable to dispose of this case on narrower grounds” and “settled principles.”

Id. at 1, 11-12. It declined to answer the constitutional question of whether the

                                          27
plaintiff’s privacy expectation was reasonable or even to set forth the governing

principles to answer that question. Instead, the Supreme Court (1) assumed

arguendo that plaintiff Quon had a reasonable expectation of privacy, (2) assumed

that the government’s review of a transcript of his text messages was a search

under the Fourth Amendment, and even (3) assumed principles governing a search

of a physical office applied to “the electronic sphere.” Id. at 12. It then concluded

that the plaintiff’s government employer did not violate the Fourth Amendment

because its review of his personal text messages on a government-owned pager

was reasonable and motivated by a legitimate work-related purpose. Id. at 12, 16-

17 (citing O’Connor v. Ortega, 480 U.S. 709, 725, 107 S. Ct. 1492, 1502 (1987)).

      As these varied cases suggest, the questions of whether Fourth Amendment

principles governing a search of Rehberg’s home also should apply to subpoenas

sent to a third-party ISP for electronic data stored on the third-party’s server, and

whether Rehberg had a reasonable privacy expectation in the contents of his

personal emails sent voluntarily through that third-party ISP, are complex,

difficult, and “far-reaching” legal issues that we should be cautious about resolving

too broadly. As the Supreme Court advised us, “[t]he judiciary risks error by

elaborating too fully on the Fourth Amendment implications of emerging

technology before its role in society has become clear.” Id. at 10. Given the lack



                                           28
of precedent, we now question whether it would be prudent in this case and on this

limited factual record to establish broad precedent as to the reasonable privacy

expectation in email content. Moreover, because this is a qualified immunity case,

we need not reach the underlying constitutional issue. Instead, we can resolve this

case narrowly, cf. id. at 1, because at a minimum Rehberg has not shown his

alleged constitutional right was clearly established.14

       In determining whether a constitutional right was clearly established at the

time of violation, “[t]he relevant, dispositive inquiry . . . is whether it would be

clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 2156 (2001); see

also Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 2516 (2002) (“the salient

question . . . is whether the state of the law [at the time of violation] . . . gave [the

defendants] fair warning that their alleged treatment of [the plaintiff] was


       14
          In his petition for panel rehearing, Rehberg also tangentially mentions the Stored
Communications Act (“SCA”), 18 U.S.C. § 2703, et seq., which provides the government a
mechanism to require the provider of a remote computing service to disclose the contents of wire
or electronic communications upon issuance of a warrant or court order. Pet. for Reh’g at 4 n.2,
10. Rehberg seemingly argues that a violation of this Act implies a violation of his
constitutional rights. However, Rehberg did not assert an SCA claim in the district court or in
his appellate brief, so we decline to address it further. Tanner Adver. Group, L.L.C. v. Fayette
County, 451 F.3d 777, 785 (11th Cir. 2006) (“‘The law is by now well settled in this Circuit that
a legal claim or argument that has not been briefed before the court is deemed abandoned and its
merits will not be addressed.’” (quoting Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,
1330 (11th Cir. 2004)) (brackets omitted)); see also Snow v. DirecTV, Inc., 450 F.3d 1314, 1321
(11th Cir. 2006) (“a valid civil complaint under the SCA must allege a violation of one of its
provisions”).

                                               29
unconstitutional”).15

       No Supreme Court decision and no precedential decision of this Circuit

defines privacy rights in email content voluntarily transmitted over the global

Internet and stored at a third-party ISP. See Quon, slip op. at 9-10. As a result,

Paulk could not have known the scope of the privacy rights, if any, that Rehberg

had in email content stored at his third-party ISP.16 The Supreme Court’s decisions

in Katz and Smith clearly established an objectively reasonable privacy right in

telephone conversation content, but, as the modern Internet did not exist at the time

of those decisions, whether the analytical framework, much less the rationale, of

those decisions transfers to privacy rights in Internet email is questionable and far

from clearly established. Indeed, in Quon, the Supreme Court only assumed,

without deciding, that the Fourth Amendment framework for analyzing physical



       15
          This fair and clear notice requirement may be met in three ways: (1) the words of the
pertinent federal statute or constitutional provision may be so specific as to clearly establish the
law even in total absence of judicial decisions interpreting the law, Vinyard v. Wilson, 311 F.3d
1340, 1350 (11th Cir. 2002); (2) “some broad statements of principle in case law are not tied to
particularized facts and can clearly establish law applicable in the future to different sets of
detailed facts,” id. at 1351; and (3) most commonly, when we lack explicit statutory or
constitutional pronouncements and broad case holdings, we look to precedential cases that are
tied to their particular facts. Id. at 1351-52. When caselaw is needed, we look to decisions of
the U.S. Supreme Court, this Court, and, where applicable, the highest court of the pertinent
state. Marsh v. Butler County, Ala., 268 F.3d 1014, 1032-33 n.10 (11th Cir. 2001).
       16
         There is no allegation, for instance, that the Defendants searched Rehberg’s home
computer or even his entire email account. The Complaint alleges only that Paulk subpoenaed
and accessed email messages actually sent and received through Rehberg’s ISP. An email draft
never sent by Rehberg to his ISP would not have been within the scope of the subpoena.

                                                 30
searches applied to searches in the “electronic sphere.” Id. at 12. In contrast,

Rehberg has not identified any judicial decision holding a government agent liable

for Fourth Amendment violations related to email content received by a third party

and stored on a third party’s server.

       Because the federal law was not clearly established, the district court erred

in denying qualified immunity to Paulk on Rehberg’s email subpoena claim.17

                IV. COUNT 7 – RETALIATORY PROSECUTION

       In Count 7, Rehberg alleges Hodges and Paulk violated his First

Amendment free speech rights by retaliating against him for his criticism of the

hospital in his faxes. Rehberg alleges Hodges’s and Paulk’s decisions to

investigate him, issue subpoenas, provide his information to paid civilians, and

procure wrongful indictments were in retaliation for his faxes and criticism of the




       17
         Rehberg’s § 1983 malicious prosecution claim in Count 6 requires proving both (1) the
elements of the common-law tort of malicious prosecution; and (2) a violation of his Fourth
Amendment right to be free from unreasonable seizures. Kingsland v. City of Miami, 382 F.3d
1220, 1234 (11th Cir. 2004); Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003). Rehberg
alleges his arrest was an unlawful seizure, but he also appears to contend that the unlawful
search of his phone records and emails also would support a malicious prosecution claim. We
cannot locate any case where a search without a later arrest was sufficient to support a § 1983
malicious prosecution claim. However, because Rehberg has not shown the search of his phone
records and emails violated clearly established federal law, we need not address the viability of
Rehberg’s malicious prosecution claims as to the subpoenas. Alternatively, if Rehberg is
attempting to assert only an independent Fourth Amendment claim (and not a malicious
prosecution claim) as to the subpoenas, Rehberg also has not shown the violation of clearly
established federal law.

                                               31
hospital and were all made without probable cause.18

          We first review Hartman v. Moore, 547 U.S. 250, 126 S. Ct. 1695 (2006),

which addresses retaliatory-prosecution claims.

A.        Hartman v. Moore

          In Hartman, plaintiff Moore brought a Bivens19 action against postal

inspectors and a federal prosecutor for retaliatory prosecution.20 Because of

Moore’s criticism of and lobbying to the U.S. Postal Service, postal inspectors

launched criminal investigations against Moore and pressured the United States

Attorney’s Office to indict him, “[n]otwithstanding very limited evidence.” Id. at

253-54, 126 S. Ct. at 1699-1700. Although they did not testify, the postal

inspectors drafted “witness statements” for other witnesses and provided them to

the prosecutor, who presented them to the grand jury. Moore v. United States, 213

F.3d 705, 707 (D.C. Cir. 2000). The district court dismissed the criminal charges




          18
         To the extent Rehberg relies on the Fourth Amendment, “there is no retaliation claim
under the Fourth Amendment separate and distinct from [Rehberg’s] malicious prosecution . . .
claim[].” Wood, 323 F.3d at 883. “Instead, the only cause of action for retaliation that arguably
applies here is retaliatory prosecution in violation of the First Amendment.” Id.
          19
               See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999
(1971).
          20
         Moore’s company manufactured a multiline optical character reader useful in sorting
mail. Hartman, 547 U.S. at 252, 126 S. Ct. at 1699. He lobbied the U.S. Postal Service to
purchase multiline readers and criticized its reliance on single-line readers. Id. at 253, 126 S. Ct.
at 1699.

                                                   32
against Moore for a “complete lack of direct evidence.” Hartman, 547 U.S. at 254,

126 S. Ct. at 1700.

      In Moore’s subsequent Bivens action for retaliatory prosecution, the district

court granted absolute immunity to the prosecutor but denied qualified immunity to

the postal inspectors. Id. at 255, 126 S. Ct. at 1701. As to the prosecutor, the D.C.

Circuit affirmed absolute immunity for the retaliatory decision to prosecute Moore

and the prosecutor’s concealment of exculpatory evidence from the grand jury,

manipulation of evidence before the grand jury, and failure to disclose exculpatory

material before trial. Moore, 213 F.3d at 708. As to the postal inspectors, the D.C.

Circuit affirmed the denial of qualified immunity and allowed Moore’s retaliatory-

prosecution claim to proceed against them, even though Moore had not shown an

absence of probable cause for the criminal charges against him.

      In reversing the D.C. Circuit’s denial of qualified immunity to the postal

inspectors, the Supreme Court in Hartman concluded that to bring a retaliatory-

prosecution claim, the plaintiff must show an absence of probable cause for the

prosecution. Hartman, 547 U.S. at 252, 126 S. Ct. at 1699. The Supreme Court

first noted, “as a general matter the First Amendment prohibits government

officials from subjecting an individual to retaliatory actions, including criminal

prosecutions, for speaking out.” Id. at 256, 126 S. Ct. at 1701 (citations and



                                          33
quotation marks omitted). The Supreme Court, however, explained that a

retaliatory-prosecution suit cannot be brought against the prosecutor, but only

against the “non-prosecuting official” who successfully induced the prosecutor to

bring charges that would not otherwise have been brought, as follows:

              A Bivens (or § 1983) action for retaliatory prosecution
              will not be brought against the prosecutor, who is
              absolutely immune from liability for the decision to
              prosecute. Instead, the defendant will be a
              nonprosecutor, an official, like an inspector here, who
              may have influenced the prosecutorial decision but did
              not himself make it, and the cause of action will not be
              strictly for retaliatory prosecution, but for successful
              retaliatory inducement to prosecute. The consequence is
              that a plaintiff like Moore must show that the
              nonprosecuting official acted in retaliation, and must also
              show that he induced the prosecutor to bring charges that
              would not have been initiated without his urging.

Id. at 261-62, 126 S. Ct. at 1704-05 (emphasis added). To sue for retaliatory

prosecution, a plaintiff must establish a “but-for” causal connection between the

retaliatory animus of the non-prosecutor and the prosecutor’s decision to prosecute.

See id. at 256, 261, 126 S. Ct. at 1701, 1704 (discussing “but-for cause” and “but-

for basis” for the prosecutor’s decision to prosecute).21

       And Hartman indicates that to establish a prima facie case of this but-for


       21
          In a footnote, the Supreme Court noted that Moore’s complaint charged the prosecutor
with acting in both an investigatory and prosecutorial capacity, but that no appeal or claim
against the prosecutor was before the Supreme Court. Hartman, 547 U.S. at 262 n.8, 126 S. Ct.
at 1705 n.8.

                                              34
causal connection, a plaintiff must plead and prove both (1) a retaliatory motive on

the part of the non-prosecutor official, and (2) the absence of probable cause

supporting the prosecutor’s decision. Id. at 265, 126 S. Ct. at 1706; see also Wood,

323 F.3d at 883 (First Amendment retaliatory-prosecution claim is defeated by the

existence of probable cause). A retaliatory motive on the part of a “non-

prosecuting official” combined with an absence of probable cause will create “a

prima facie inference that the unconstitutionally motivated inducement infected the

prosecutor's decision to bring the charge.” Hartman, 547 U.S. at 265, 126 S. Ct. at

1706. Importantly, the absence of probable cause “is not necessarily dispositive”

of whether the unconstitutionally motivated inducement succeeded, but will create

a prima facie inference that it did. Id. The burden then shifts to the defendant

official to show “that the action would have been taken anyway, independently of

any retaliatory animus.” Id. at 261, 126 S. Ct. at 1704. In other words, the

defendant official will not be liable if he can show the prosecutor would have taken

the action complained of anyway. Id.

B.    Rehberg’s Retaliatory-Prosecution Claims

      Hartman dictates the outcome of Rehberg’s retaliatory-prosecution claim in

Count 7. First, as to Hodges, Rehberg alleges Hodges was in communication with

Burke about the decision to prosecute, even after Hodges recused. Hodges’s



                                          35
alleged decision to prosecute Rehberg, even if made without probable cause and

even if caused solely by Paulk’s and his unconstitutional retaliatory animus, is

protected by absolute immunity. Hartman, 547 U.S. at 261-62, 126 S. Ct. at 1704-

05.

       As to Paulk, Rehberg must show investigator Paulk’s retaliation against

Rehberg successfully induced the prosecution and was the “but-for” cause of the

prosecution. Hartman, 547 U.S. at 265, 126 S. Ct. at 1701. Accordingly, Rehberg

must show that prosecutor Burke (himself or with Hodges’s influence) would not

have prosecuted Rehberg but for Paulk’s retaliatory motive and conduct.22

       The very detailed allegations in Rehberg’s complaint satisfy the two

requirements for a prima facie case of retaliatory prosecution: non-prosecutor

Paulk’s retaliatory motive, and the absence of probable cause for prosecutor Burke

to bring charges. Hartman, 547 U.S. at 265, 126 S. Ct. at 1706. For example,

Rehberg alleges “[t]here was no probable cause for the underlying criminal charges

against Mr. Rehberg and such charges would not have been brought if there was no

retaliatory motive.” Rehberg supports this alleged lack of probable cause by

alleging Paulk admitted that “he never interviewed any witnesses or gathered any



       22
        Count 7 of Rehberg’s complaint does not name Burke as a defendant, but Count 7
claims Paulk’s retaliatory motive and actions “wrongfully influenced and instigated the
prosecutorial decision to bring charges against Mr. Rehberg.”

                                             36
evidence indicating that Mr. Rehberg committed any aggravated assault or

burglary,” and Paulk’s false testimony was the only evidence Burke presented in

support of the first indictment. Without Paulk’s allegedly false testimony, Burke

could not have procured the first indictment because there was no other evidence.

Rehberg also alleges Hodges and Paulk acted in retaliation for Rehberg’s criticisms

of the activities and financial management of a public hospital to which they had

close political connections and personal relationships and that chilling Rehberg’s

speech was a motivating factor in all of Hodges’s and Paulk’s conduct in

investigating and prosecuting him.

      In sum, Rehberg sufficiently has alleged the requisite retaliatory motive,

absence of probable cause, and but-for causation (i.e., that Burke would not have

prosecuted Rehberg but for Paulk’s false testimony). Therefore, at this pleading

juncture, the district court did not err in denying absolute and qualified immunity

to Defendant Paulk on Rehberg’s retaliatory-prosecution claim.

C.    Retaliatory Investigation Claim

      Rehberg’s complaint also alleges a “retaliatory investigation” claim against

Hodges and Paulk. For example, Rehberg’s complaint alleges Hodges and Paulk

together decided to investigate Rehberg and took several steps during the

investigation because each of them had retaliatory animus. These allegations of



                                          37
coordinated and joint actions are replete throughout the complaint. E.g., Compl. ¶¶

99 (“Mr. Paulk and Mr. Hodges instituted an investigation . . .”), 124 (“Chilling his

political speech was a substantial or motivating factor in the wrongful conduct of

Mr. Paulk and Mr. Hodges in investigating Mr. Rehberg . . .”), 157-61 (conspiracy

claim).

       Hartman does not help us with this claim because the Supreme Court

pointedly did not decide whether “simply conducting retaliatory investigation with

a view to promote prosecution is a constitutional tort.” Hartman, 547 U.S. at 262

n. 9, 126 S. Ct. at 1705 n. 9 (“Whether the expense or other adverse consequences

of a retaliatory investigation would ever justify recognizing such an investigation

as a distinct constitutional violation is not before us”).23

       As noted above, only qualified immunity, not absolute immunity, applies to

conduct taken in an investigatory capacity as opposed to a prosecutorial capacity.

As we explain above, it was not clearly established that the subpoenas to Rehberg’s

phone and email providers violated his Fourth Amendment rights. We also are

inclined to agree with the government that Hodges and Paulk’s retaliatory animus

does not create a distinct constitutional tort.24

       23
            Rehberg does not allege he incurred any expenses in the investigation stage.
       24
          The initiation of a criminal investigation in and of itself does not implicate a federal
constitutional right. The Constitution does not require evidence of wrongdoing or reasonable
suspicion of wrongdoing by a suspect before the government can begin investigating that

                                                  38
       But even if we assume Rehberg has stated a constitutional violation by

alleging that Hodges and Paulk initiated an investigation and issued subpoenas in

retaliation for Rehberg’s exercise of First Amendment rights, Hodges and Paulk

still receive qualified immunity because Rehberg’s right to be free from a

retaliatory investigation is not clearly established. The Supreme Court has never

defined retaliatory investigation, standing alone, as a constitutional tort, Hartman,

547 U.S. at 262 n.9, 126 S. Ct. at 1705 n.9, and neither has this Court. Without

this sort of precedent, Rehberg cannot show that the retaliatory investigation

alleged here violated his First Amendment rights. See Oliver v. Fiorino, 586 F.3d

898, 907 (11th Cir. 2009) (“In order to determine whether a right is clearly

established, we look to the precedent of the Supreme Court of the United States,

this Court’s precedent, and the pertinent state’s supreme court precedent,

interpreting and applying the law in similar circumstances”). Hodges and Paulk

accordingly are entitled to qualified immunity for Rehberg’s retaliatory

investigation claims in Count 7.

         V. COUNT 8 – FABRICATION OF EVIDENCE AND PRESS
                   STATEMENTS AGAINST BURKE

       Count 8 is against only Burke. Rehberg alleges Burke violated his



suspect. See United States v. Aibejeris, 28 F.3d 97, 99 (11th Cir. 1994). No § 1983 liability can
attach merely because the government initiated a criminal investigation.

                                               39
“constitutional rights” by (1) “participat[ing] in fabricating evidence”; (2)

presenting Paulk’s perjured testimony to the grand jury; and (3) making

defamatory statements to the media which “damaged Mr. Rehberg’s reputation.”25

       As a special prosecutor appointed to stand in for Hodges, Burke receives the

full scope of absolute prosecutorial immunity and is absolutely immune for

Rehberg’s claims of malicious prosecution and the presentation of perjured

testimony to a grand jury. For the same reasons explained above, Burke also is

absolutely immune for participating in the conspiracy to fabricate Paulk’s grand

jury testimony against Rehberg.

       Burke’s statements to the media, however, are not cloaked in absolute

immunity because “[c]omments to the media have no functional tie to the judicial

process just because they are made by a prosecutor,” and they are not part of the

prosecutor’s role as an advocate of the State. See Buckley, 509 U.S. at 277-78,

113 S. Ct. at 2618 (“The conduct of a press conference does not involve the

initiation of a prosecution, the presentation of the state’s case in court, or actions

preparatory for these functions”); Hart v. Hodges, 587 F.3d 1288, 1297 (11th Cir.

2009). Burke’s immunity for the alleged press statements must arise, if at all,

through qualified immunity.


       25
          Burke is not alleged to have participated in subpoenaing Rehberg’s telephone and
Internet providers.

                                               40
       A tort claim, such as Rehberg’s defamation allegation in Count 8, does not

give rise to a § 1983 due process claim unless there is an additional constitutional

injury alleged. Cypress Ins. Co. v. Clark, 144 F.3d 1435, 1438 (11th Cir. 1998).

“The Supreme Court . . . held that injury to reputation, by itself, does not constitute

the deprivation of a liberty or property interest protected under the Fourteenth

Amendment.” Behrens v. Regier, 422 F.3d 1255, 1259 (11th Cir. 2005) (citing

Paul v. Davis, 424 U.S. 693, 701-02, 96 S. Ct. 1155, 1160-61 (1976)).26 Damages

to a plaintiff’s reputation “are only recoverable in a section 1983 action if those

damages were incurred as a result of government action significantly altering the

plaintiff’s constitutionally recognized legal rights.” Cypress, 144 F.3d at 1438.

       This doctrine is known as the “stigma-plus” test, Cannon v. City of W. Palm

Beach, 250 F.3d 1299, 1302 (11th Cir. 2001), and requires the plaintiff to show

both a valid defamation claim (the stigma) and “the violation of some more

tangible interest” (the plus). Behrens, 422 F.3d at 1260 (quotation marks omitted).

“To establish a liberty interest sufficient to implicate the fourteenth amendment

safeguards, the individual must be not only stigmatized but also stigmatized in



       26
          Rehberg does not specifically identify what constitutional provision Burke’s media
statements violated. We assume Rehberg asserts a Fourteenth Amendment due process claim.
See, e.g., Paul, 424 U.S. at 712, 96 S. Ct. at 1165-66; Cypress, 144 F.3d at 1436. Rehberg does
not identify another constitutional theory that might support a § 1983 action for false statements
to the media.

                                                41
connection with . . . [a] government official’s conduct [that] deprived the plaintiff

of a previously recognized property or liberty interest in addition to damaging the

plaintiff’s reputation.” Id. (citations and quotation marks omitted).27 The “stigma-

plus” test requires not only allegations stating a common-law defamation claim,

but also an additional constitutional injury, tied to a previously recognized

constitutional property or liberty interest, flowing from the defamation. Cypress,

144 F.3d at 1436-37.

       Rehberg’s complaint alleges damage to his reputation but does not allege the

required deprivation of any previously recognized constitutional property or liberty

interest. The only factual allegations Rehberg makes regarding Burke’s media

statements are these: “Mr. Rehberg . . . was subjected to extensive publicity in the

media where he was identified as being charged with multiple felonies and

misdemeanors, and publicly identified by the acting District Attorney as having

committed an assault and burglary. The damage of three indictments on his public



       27
          “While we have in a number of our prior cases pointed out the frequently drastic effect
of the ‘stigma’ which may result from defamation by the government in a variety of contexts,
this line of cases does not establish the proposition that reputation alone, apart from some more
tangible interests such as employment, is either ‘liberty’ or ‘property’ by itself sufficient to
invoke the procedural protection of the Due Process Clause.” Paul, 424 U.S. at 701, 96 S. Ct. at
1160-61; see also Siegert v. Gilley, 500 U.S. 226, 234, 111 S. Ct. 1789, 1794 (1991) (“Most
defamation plaintiffs attempt to show some sort of special damage and out-of-pocket loss which
flows from the injury to their reputation. But so long as such damage flows from injury caused
by the defendant to a plaintiff’s reputation, it may be recoverable under state tort law but it is not
recoverable in a Bivens action.”).

                                                  42
record will remain with him and his wife and children for the rest of their lives.”

He continues by alleging, “[t]hese wrongful indictments will always be associated

with his name and have caused and will cause significant personal, professional

and economic damages to Mr. Rehberg.” Rehberg alleges Burke’s media

statements “wrongfully damaged [his] reputation.”

      In short, Rehberg’s defamation allegations are too generalized to show a

previously recognized constitutional deprivation flowing from Burke’s alleged

defamatory statements. Damage to reputation alone is insufficient to state a

Fourteenth Amendment due process claim. Cypress, 144 F.3d at 1437-38

(“Indeed, [in Siegert v. Gilley, 500 U.S. 226, 111 S. Ct. 1789 (1991)] the

[Supreme] Court specifically rejected the notion that defamation by a government

actor that causes injury to professional reputation violates procedural due

process”).

      The district court averted this settled law by connecting Burke’s media

statements to “the alleged Fourteenth Amendment violation alleged by Plaintiff,

i.e., violation of his right to be free from prosecution based upon false

evidence/charges.” This was error. The “stigma-plus” test requires the plaintiff to

show deprivation of a previously recognized Fourteenth Amendment property or

liberty interest “in connection with” the claimed defamation. Even liberally



                                          43
construed, Rehberg’s complaint does not allege a procedural due process claim

under the Fourteenth Amendment. See Albright v. Oliver, 510 U.S. 266, 272, 114

S. Ct. 807, 812 (1994). Rehberg does not allege Dougherty County or the

individual defendants denied him the constitutionally required procedures

necessary to challenge his indictments and arrest. Indeed, Rehberg’s successful

challenges to the three indictments show otherwise. And, under the Fourteenth

Amendment, there is no substantive due process right to be free from malicious

prosecution without probable cause. Id. at 274, 114 S. Ct. at 813. A malicious

prosecution claim arises under the Fourth Amendment, not Fourteenth Amendment

substantive due process.

       Therefore, the only remaining “plus” Rehberg identifies is the right to be

free from malicious prosecution and unreasonable detention under the Fourth

Amendment. However, Rehberg’s complaint does not allege that Burke’s media

statements caused Rehberg’s indictments and arrest.28 For example, there is no

allegation that the grand jury relied on Burke’s press statements in indicting

Rehberg or that the Defendants relied on Burke’s media statements as probable

cause to arrest Rehberg. Paul’s “stigma-plus” test is not satisfied by simply



       28
        The complaint does not clearly state whether Burke made his media statements before
Rehberg was indicted or after, but the complaint also does not allege any fact showing that
Burke’s media statements caused Rehberg to be indicted.

                                             44
alleging a constitutional violation somewhere in the case. The constitutional

violation must itself flow from the alleged defamation.29

       In any event, Rehberg cannot use the prosecution itself (the indictment and

arrest) as the basis for constitutional injury supporting a § 1983 defamation claim.

The Seventh Circuit considered this precise situation, concluding the plaintiff must

point to some constitutional wrong, other than the indictment and related events, in

order to support a § 1983 constitutional claim based on defamation. “Identifying

the arrest and imprisonment as the loss of liberty does not assist [the plaintiff],

however, because [the prosecutor] has absolute immunity from damages for these

events.” Buckley v. Fitzsimmons, 20 F.3d 789, 797 (7th Cir. 1994), cert. denied,

513 U.S. 1085, 115 S. Ct. 740 (1995) (rejecting plaintiff’s arrest as a sufficient

“plus” under the stigma-plus test). The Seventh Circuit explained that, “the

Supreme Court [] adopt[ed] a strict separation between the prosecutor’s role as

advocate and the ancillary events (such as press conferences) surrounding the

prosecution. It would be incongruous to treat the press conference and the

prosecution as distinct for purposes of immunity but not for purposes of defining


       29
         The district court cited Riley v. City of Montgomery, Ala., 104 F.3d at 1253, for the
proposition that fabricating evidence violates an accused’s constitutional rights, and thus since
Rehberg alleges fabrication in this case, he satisfied Paul’s “stigma-plus” test. Even assuming
evidence was fabricated and that this fabrication was a constitutional violation, nothing in the
complaint connects Hodges’s and Paulk’s alleged evidence fabrication to Burke’s press
statements.

                                                45
the actionable wrong.” Id. at 797-98. The Seventh Circuit concluded that, “a

plaintiff who uses a ‘stigma plus’ approach to avoid Paul and Siegert must identify

a ‘plus’ other than the indictment, trial, and related events for which the defendants

possess absolute prosecutorial immunity.” Id. at 798.

      Therefore Rehberg failed to satisfy Paul’s “stigma-plus” test and fails to

allege a constitutional claim based on the press statements. This lack of a

constitutional claim means Burke receives qualified immunity for his press

statements. The district court erred by not finding Burke immune for the

allegations in Count 8.

                          VI. COUNT 10 – CONSPIRACY

      Count 10 alleges Hodges, Burke, and Paulk engaged in a conspiracy to

violate Rehberg’s constitutional rights under the First, Fourth, and Fourteenth

Amendments.

      “A person may not be prosecuted for conspiring to commit an act that he

may perform with impunity.” Jones, 174 F.3d at 1289 (citations omitted). A

prosecutor cannot be liable for “conspiracy” to violate a defendant’s constitutional

rights by prosecuting him if the prosecutor also is immune from liability for

actually prosecuting the defendant. Rowe, 279 F.3d at 1282. And a witness’s

absolute immunity for testifying prevents any use of that testimony as evidence of



                                          46
the witness’s membership in an unconstitutional conspiracy prior to his testimony.

Id.; Mastroianni, 173 F.3d at 1367.

       Rehberg’s conspiracy allegations do not enlarge what he alleged previously

in his complaint. This opinion has already explained why Hodges, Burke, and

Paulk receive absolute or qualified immunity for all of the conduct alleged in

Counts 6 and 8 and why Hodges receives absolute immunity for the retaliatory

prosecution in Count 7. Rehberg cannot state a valid conspiracy claim by alleging

the Defendants conspired to do things they already are immune from doing

directly.

       The only portion of Count 7 that remains is Rehberg’s retaliatory

prosecution claim against Paulk alone. The intracorporate conspiracy doctrine bars

conspiracy claims against corporate or government actors accused of conspiring

together within an organization, preventing Rehberg’s claim that Paulk “conspired”

to initiate a retaliatory prosecution. Dickerson v. Alachua County Commission,

200 F.3d 761, 767 (11th Cir. 2000) (“[I]t is not possible for a single legal entity

consisting of the corporation and its agents to conspire with itself, just as it is not

possible for an individual person to conspire with himself”); Denny v. City of

Albany, 247 F.3d 1172, 1190 (11th Cir. 2001) (applying intracorporate conspiracy

doctrine to city, city fire chief, and city manager). Rehberg has not alleged that



                                            47
Paulk conspired with anyone outside of the District Attorney’s office. See Denny,

247 F.3d at 1191 (“the only two conspirators identified . . . are both City

employees; no outsiders are alleged to be involved”). The “conspiracy” occurred

only within a government entity, and thus the intracorporate conspiracy doctrine

bars Count 10 against Paulk. The district court erred in not dismissing Count 10.

                                VII. CONCLUSION

      For the reasons explained above, Hodges and Paulk receive absolute

immunity for Paulk’s grand jury testimony and for the related pre-indictment

conspiracy conduct alleged in Count 6; Hodges and Paulk receive qualified

immunity for the issuance of subpoenas alleged in Count 6; Hodges receives

absolute immunity for initiating a retaliatory prosecution as alleged in Count 7;

Hodges and Paulk both receive qualified immunity for the retaliatory investigation

alleged in Count 7; Burke receives absolute immunity for the allegations in Count

8, except for the alleged media statements, for which he receives qualified

immunity; and Count 10’s conspiracy claim fails. The only surviving claim from

this appeal is the retaliatory-prosecution claim in Count 7 against Paulk, for which

the district court correctly denied absolute and qualified immunity. We reverse the

district court’s order in part and remand this case for the district court to grant the

Defendants’ motions to dismiss and to enter judgment in favor of all Defendants on



                                           48
Counts 6, 7, 8, and 10, except for the retaliatory-prosecution claim against Paulk in

Count 7.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




                                          49
