                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                       February 1, 2006
                     UNITED STATES COURT OF APPEALS
                                                                      Elisabeth A. Shumaker
                                  TENTH CIRCUIT                          Clerk of Court


 VICTOR ALLEN WHITE,

          Plaintiff-Appellant,
 v.
                                                       No. 05-3407
 JENNIFER HENDRIX, Lyon County                  (D.C. No. 05-CV-3044-SAC)
 Attorney; and MARC GOODMAN,                             (D. Kan.)
 “Head” Lyon County Attorney, in their
 official capacities,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, LUCERO, and McKAY, Circuit Judges.


      Victor White, a state prisoner, appeals the dismissal of his 42 U.S.C.

§ 1983 claim against Jennifer Hendrix and Marc Goodman, both Lyon County,

Kansas prosecutors. Because Hendrix and Goodman are protected by

prosecutorial immunity, we AFFIRM.



      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
      White claims that Hendrix filed drug charges against him despite knowing

that some of the factual evidence presented at trial was false. He also complains

that Goodman failed to investigate Hendrix after being informed of Hendrix’s

alleged misconduct.

      We review a district court’s dismissal on grounds of prosecutorial immunity

de novo. Arnold v. McClain, 926 F.2d 963, 966 (10th Cir. 1991). Prosecutors

enjoy absolute immunity to liability under § 1983 for actions “within the scope of

their prosecutorial duties.” Id. Acknowledging this bar to his suit, White claims

that Hendrix’s actions in presenting this false testimony were not “intimately

associated with the judicial process.” Imbler v. Pachtman, 424 U.S. 409, 430

(1976). This argument has no merit. The Supreme Court stated clearly that “in

initiating a prosecution and in presenting the State’s case, the prosecutor is

immune from a civil suit for damages under § 1983.” Id. at 431. The district

court did not err in finding Hendrix was entitled to prosecutorial immunity.

      Goodman is also immune from suit. When a prosecutor is performing an

investigative function, he is protected by qualified immunity. Buckley v.

Fitzsimmons, 509 U.S. 259, 276 (1993). To determine if a public official is

protected from litigation by qualified immunity, we ask whether a plaintiff’s

allegations amount to a constitutional violation and if so, whether a defendant’s

actions violate “clearly established statutory or constitutional rights.” Hope v.


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Pelzer, 536 U.S. 730, 736 (2002). White argues that his due process rights were

violated by Goodman’s failure to investigate. White does not have a due process

right to an investigation of Hendrix’s alleged misconduct. See DeShaney v.

Winnebago County Dep’t of Soc. Serv., 489 U.S. 189, 195-97 (1989) (holding

that Due Process Clause generally does not impose an affirmative duty on states

to aid or protect citizens).

      Because both Goodman and Hendrix are immune from suit, the district

court did not err in dismissing the suit on this basis, and we AFFIRM. White is

reminded of his duty to continue making partial payments until the balance of his

appellate filing fee is paid.


                                      ENTERED FOR THE COURT



                                      Carlos F. Lucero
                                      Circuit Judge




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