                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                            ______________

                                  No. 14-4158
                                ______________

                            DAVID MUNCHINSKI

                                        v.

     GERALD SOLOMON, In His Official Capacity as District Attorney
       of Fayette County, Pennsylvania and In His Individual Capacity;
      RALPH WARMAN, In His Official Capacities as First Assistant
   District Attorney and District Attorney of Fayette County, Pennsylvania
                        and In His Individual Capacity;
JOHN A. KOPAS, III, In His Official Capacity as First Assistant District Attorney
                of Fayette County and His Individual Capacity;
        DANA L. FAYOCK, Executrix of the Estate of George Fayock

                             GERALD SOLOMON;
                              RALPH WARMAN,
                                  Appellants
                               ______________

         APPEAL FROM THE UNITED STATES DISTRICT COURT
          FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                         (D.C. No. 2:13-cv-01280)
                  District Judge: Hon. David S. Cercone
                             ______________

                   Submitted Under Third Circuit LAR 34.1(a)
                                 July 16, 2015
                               ______________

     Before: SMITH, GREENAWAY, JR., and SHWARTZ, Circuit Judges.

                              (Filed: July 20, 2015)
                                     ______________

                                        OPINION*
                                     ______________

SHWARTZ, Circuit Judge.

       Following his release from prison, David Munchinski sued former Fayette County

prosecutors Gerald Solomon and Ralph Warman (together, the “Prosecutors”) under 42

U.S.C. § 1983, claiming that they violated his rights to due process and a fair trial by

withholding material exculpatory evidence in connection with his murder convictions.

The Prosecutors moved to dismiss, arguing that they are immune from suit. The District

Court denied the motion. We will affirm.

                                              I

                                             A1

       Munchinski and a co-defendant, Leon Scaglione, were charged with two murders

in 1982 and tried jointly in 1983. The jury deadlocked, and Munchinski and Scaglione

were retried separately in 1986. At Munchinski’s retrial, the prosecution primarily relied

on the testimony of Richard Bowen, who claimed to have observed Munchinski and

Scaglione commit the murders. Munchinski was convicted and sentenced to two

consecutive life terms.


       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
      1
        Unless otherwise noted, these facts are drawn from Munchinski v. Wilson, 694
F.3d 308 (3d Cir. 2012).
                                              2
       In 1991, Bowen recanted his trial testimony, stating that he had not witnessed the

murders but was coached by Solomon to say that he had. Based in part on this

recantation, Munchinski filed a petition for relief in 1992 under the Pennsylvania Post-

Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. § 9541 et seq. At an

evidentiary hearing, Bowen disavowed his recantation, and in 1993, Munchinski’s PCRA

petition was denied. He filed two subsequent PCRA petitions, in 2000 and 2001, that

were also denied.

       In 1998, Munchinski filed a petition for habeas relief under 28 U.S.C. § 2254. The

District Court denied the petition and we affirmed. Munchinski v. Price, 254 F.3d 1078

(3d Cir. 2001). He filed a second habeas petition in 2007, alleging that the prosecution

withheld material exculpatory evidence, including evidence that Bowen was not in

Pennsylvania at the time of the murders. The District Court granted this petition,

concluding that Munchinski had demonstrated that the prosecution “suppressed favorable

evidence that was material to the determination of his guilt or innocence” and thus

“deprived [him] of a constitutionally-adequate trial.” Munchinski v. Wilson, 807 F.

Supp. 2d 242, 290 (W.D. Pa. 2011). We affirmed and ordered the Commonwealth to

release Munchinski or retry him. Munchinski v. Wilson, 694 F.3d 308, 339 (3d Cir.

2012). He was not retried and was released from prison in 2013.




                                             3
                                              B2

       Munchinski sued the Prosecutors, among others, under 42 U.S.C. § 1983, claiming

that they violated his constitutional rights to due process and a fair trial. He alleges that

in September 1982, the Prosecutors tape-recorded an interview of Bowen during which

Bowen denied any involvement in or knowledge of the murders, and that the Prosecutors

“knowingly failed to preserve” the tape. App. 39 (Compl. ¶ 24).

       According to Munchinski, Bowen provided a second statement to the Prosecutors

roughly one month later in which Bowen claimed, “for the first time,” to have witnessed

the crimes. App. 40 (Compl. ¶ 25). Shortly thereafter, Munchinski was arrested and

charged. Munchinski alleges that, based on Bowen’s contradictory statements, the

Prosecutors could not have reasonably believed that there was probable cause to arrest

and charge him.

       Munchinski also alleges that he was wrongfully convicted in 1986 because the

Prosecutors failed to disclose material exculpatory evidence after the 1983 mistrial. He

further alleges that, during the first PCRA proceeding, Warman and another prosecutor

were ordered to produce for the PCRA court’s in camera review the “complete and

entire” Pennsylvania State Police investigation file, but failed to do so, and thereby

withheld material exculpatory evidence. App. 44 (Compl. ¶ 44). Munchinski maintains

that Warman continued to unlawfully withhold this evidence through the denial of his

       2
       The facts for this section are drawn from the Amended Complaint. In
accordance with our standard of review, we assume that they are true.
                                               4
first habeas petition in 2001.

       The Prosecutors moved to dismiss the Amended Complaint under Fed. R. Civ. P.

12(b)(6), arguing, among other things, that they are entitled to absolute and Eleventh

Amendment immunity. The District Court denied the motion. The Prosecutors appeal.

                                             II3

                                             A

       We first address whether the Prosecutors are entitled to absolute immunity. As a

general matter, “state prosecutors are absolutely immune from liability under § 1983 for

actions performed in a [judicial or] quasi-judicial role.” Yarris v. Cnty. of Del., 465 F.3d

129, 135 (3d Cir. 2006). “This immunity extends to acts that are ‘intimately associated

       3
         The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have
jurisdiction to review the District Court’s denial of absolute and Eleventh Amendment
immunity under the collateral-order doctrine to the extent it turns on issues of law.
Dotzel v. Ashbridge, 438 F.3d 320, 323-24 (3d Cir. 2006); P.R. Aqueduct & Sewer Auth.
v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993).
        We exercise plenary review over the District Court’s denial of absolute immunity,
Kulwicki v. Dawson, 969 F.2d 1454, 1461 (3d Cir. 1992), and Eleventh Amendment
immunity, Haybarger v. Lawrence Cnty. Adult Probation & Parole, 551 F.3d 193, 197
(3d Cir. 2008). Because the District Court ruled on the Prosecutors’ immunity arguments
in the context of denying their motion to dismiss under Fed. R. Civ. P. 12(b)(6), “[w]e
apply the same standard that district courts apply at the motion-to-dismiss stage.” Yarris
v. Cnty. of Del., 465 F.3d 129, 134 (3d Cir. 2006). Thus, we are “concerned with neither
the accuracy of the facts alleged nor the merits of [Munchinski’s] underlying claims.” Id.
Rather, we must construe the facts alleged in the Amended Complaint in the manner most
favorable to Munchinski to determine whether the Prosecutors are entitled to immunity
for any claims based on their alleged misconduct. Id.; see also Kulwicki, 969 F.2d at
1462-63. We may also consider “any matters incorporated by reference or integral to the
claim, items subject to judicial notice, [and] matters of public record.” Buck v. Hampton
Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (internal quotation marks omitted).

                                             5
with the judicial phase of the criminal process,’” id. (quoting Imbler v. Pachtman, 424

U.S. 409, 430-31 (1976)), but does not encompass “[a] prosecutor’s administrative duties

and those investigatory functions that do not relate to an advocate’s preparation for the

initiation of a prosecution or for judicial proceedings,” Buckley v. Fitzsimmons, 509 U.S.

259, 273 (1993). “Ultimately, whether a prosecutor is entitled to absolute immunity

depends on whether she establishes that she was functioning as the state’s ‘advocate’

while engaging in the alleged conduct that gives rise to the constitutional violation.”

Yarris, 465 F.3d at 136 (quoting Buckley, 509 U.S. at 274).

       To determine whether the Prosecutors are entitled to absolute immunity, we must

examine each of the five acts of misconduct alleged in the Amended Complaint and

discern whether the Prosecutors were acting in a judicial or quasi-judicial role, or were

instead performing administrative or investigatory functions. See Wilson v. Rackmill,

878 F.2d 772, 775-76 (3d Cir. 1989). At the 12(b)(6) stage, the Prosecutors must

establish that “the allegations of [Munchinski’s Amended Complaint] . . . indicate the

existence of absolute immunity as an affirmative defense; the defense must clearly appear

on the face of the [Amended Complaint].” Id. at 776; Light v. Haws, 472 F.3d 74, 78 (3d

Cir. 2007). We address each allegation of misconduct in turn.

       1.     The Interview Tape

       Munchinski alleges that the Prosecutors “knowingly failed to preserve” the tape of




                                             6
Bowen’s initial interview.4 App. 39 (Compl. ¶ 24). While Munchinski fails to specify

when this knowing failure to preserve the interview tape occurred, he makes this

assertion in the context of describing the interview itself, which took place in September

of 1982. At that time, Munchinski had yet to be arrested or charged. This suggests that,

in interviewing Bowen, the Prosecutors had adopted “the detective’s role in searching for

the clues and corroboration that might give [them] probable cause to recommend that a

suspect be arrested,” and were thus performing an investigatory rather than a

prosecutorial function. Buckley, 509 U.S. at 273. To the extent that their alleged failure

to preserve the tape occurred in this context, they are not entitled to absolute immunity.5

Id. (“When a prosecutor performs the investigative functions normally performed by a

detective or police officer, it is neither appropriate nor justifiable that, for the same act,

immunity should protect the one and not the other.” (internal quotation marks omitted)).

Therefore, the Prosecutors’ motion to dismiss was properly denied in this respect.

       2.     The Charging Decision

       Munchinski alleges that the Prosecutors ignored Bowen’s inconsistent interview

statements and thus could not have reasonably believed there was probable cause to arrest

       4
          The District Court inaccurately characterized the allegation as asserting that the
Prosecutors destroyed the tape.
        5
          To the extent Munchinski intended to allege that the Prosecutors knowingly
failed to preserve the tape in some other context, we note there are circumstances in
which prosecutors are not absolutely immune for knowingly failing to preserve
exculpatory evidence, see Henderson v. Fisher, 631 F.2d 1115, 1120 (3d Cir. 1980), but
we need not issue a sweeping denial of absolute immunity beyond the allegations as we
understand them.
                                                7
and charge him. The arrest of a criminal defendant and the filing of charges are at the

core of the prosecutorial function, and “[a] prosecutor is absolutely immune when

making [the decision to initiate a prosecution], even where he acts without a good faith

belief that any wrongdoing has occurred.” Kulwicki v. Dawson, 969 F.2d 1454, 1464 (3d

Cir. 1992). Accordingly, the Prosecutors are entitled to absolute immunity for this

conduct. Id.; see also Kalina v. Fletcher, 522 U.S. 118, 129 (1997) (holding that a

prosecutor’s filing of an arrest warrant and charging documents are protected by absolute

immunity).

       3.     Disclosures after the 1983 Mistrial

       Munchinski alleges that the Prosecutors withheld material exculpatory evidence

after his mistrial in 1983 through his retrial and conviction in 1986. As a general matter,

prosecutors are “entitled to absolute immunity from claims based on their failure to

disclose exculpatory evidence” before and during trial. Yarris, 465 F.3d at 137. Such

immunity does not, however, extend to periods of “judicial inactivity.” Odd v. Malone,

538 F.3d 202, 213-14 (3d Cir. 2008) (no absolute immunity for alleged prosecutorial

misconduct during a four month continuance). With respect to the lengthy period

between Munchinski’s April 1983 mistrial and his November 1986 retrial, we are unable

to determine from the Amended Complaint what transpired, and thus whether the

Prosecutors “remained ‘intimately associated with [the case’s] judicial phase,’” entitling

them to absolute immunity, id. (quoting Imbler, 424 U.S. at 430), or assumed a more

                                             8
administrative role, in which case absolute immunity would not attach. Because the

immunity defense must be apparent from the face of the complaint, Wilson, 878 F.2d at

776, we cannot conclude at this stage that the Prosecutors are entitled to absolute

immunity for this conduct.6

       4.     Disclosures during the First PCRA Proceeding

       Munchinski also alleges that, during the first PCRA proceeding, Warman withheld

material exculpatory evidence by failing to produce the “complete and entire”

Pennsylvania State Police investigation file for the PCRA court’s in camera review, as

ordered. App. 44 (Compl. ¶ 44). As discussed supra, prosecutors are generally

absolutely immune for failing to disclose exculpatory evidence before and during trial.

Yarris, 465 F.3d at 137-38. To demonstrate entitlement to absolute immunity “[a]fter a

conviction is obtained,” a prosecutor must show that the alleged misconduct was “part of

[his] continuing personal involvement as the state’s advocate in adversarial post-

conviction proceedings.” Id. at 137.

       Warman directs us to public court records showing that he drafted the answer to

Munchinski’s petition and brief in opposition to Munchinski’s motion for summary relief,

and that he participated in hearings. These records, of which we take judicial notice, see

In re Indian Palms Assocs., Ltd., 61 F.3d 197, 205-06 (3d Cir. 1995), make clear that he

       6
        In 1983, the prosecutors were ordered to furnish “all of the evidence” for
Munchinski’s inspection, App. 76. Because we lack facts about the order, we will not
decide whether the Prosecutors’ alleged failure to comply with a 1983 trial court order
independently precludes the application of absolute immunity. See Odd, 538 F.3d at 214.
                                             9
was personally involved in the first PCRA proceeding as an advocate such that absolute

immunity would seem to apply to his failure to disclose exculpatory evidence in

connection with that proceeding. See Yarris, 465 F.3d at 137-38. However, there are

“few circumstances under which we would consider the act of disobeying a court order or

directive to be advocative,” and “we are loath to grant a prosecutor absolute immunity for

such disobedience,” Odd, 538 F.3d at 214, particularly where the order allegedly violated

leaves the prosecutor with little more than “a ministerial function to perform,” Reid v.

State of N.H., 56 F.3d 332, 336-38 (1st Cir. 1995).

       Here, the PCRA court ordered Warman to produce “[t]he entire Pensylvania State

Police investigation file” for its review. App. 80. Munchinski alleges that Warman

failed to do so. Insofar as the PCRA court’s order did not require Warman to exercise

any discretion to determine if an item was covered by the order, the order did not require

the exercise of a prosecutorial function. Cf. Reid, 56 F.3d at 336-38 (holding that

prosecutors were absolutely immune for withholding exculpatory evidence in violation of

a court order because the order was issued in response to a defense motion for “any

‘exculpatory’ evidence,” and thus required the prosecutors to make judgments).

Accordingly, Warman is not entitled to absolute immunity at this stage based on his

alleged violation of the PCRA court’s order and resulting failure to produce material

exculpatory evidence. The District Court therefore correctly denied immunity at this

stage for this conduct.

                                            10
       5.     Disclosures after the First PCRA Proceeding

       Lastly, Munchinski alleges that, following the first PCRA proceeding, Warman

“continued, post trial, to unlawfully withhold [material] exculpatory evidence” through

the denial of Munchinski’s first habeas petition in 2001. App. 46 (Compl. ¶ 52). While

the Amended Complaint makes clear that Munchinski continued to collaterally attack his

conviction after the denial of his first PCRA petition, it does not allege that Warman was

asked to take any action in connection with or was involved in those proceedings. The

Amended Complaint alleges only that Warman “unlawfully” withheld exculpatory

evidence between roughly 1993 and 2001. App. 46 (Compl. ¶ 52). Because the

Amended Complaint does not allege that Warman was involved in subsequent collateral

attack proceedings, it is not apparent from its face whether he is entitled to absolute

immunity for the alleged misconduct following the first PCRA proceeding. Thus, the

motion to dismiss on immunity grounds based on this allegation was properly denied.

                                              B

       We next address whether the Prosecutors are entitled to Eleventh Amendment

immunity. The Eleventh Amendment “immunize[s] an unconsenting state from suits

brought in federal courts by her own citizens as well as by citizens of another state.”

Fitchik v. N.J. Transit Rail Ops., Inc., 873 F.2d 655, 658-59 (3d Cir. 1989) (internal

quotation marks omitted). A suit brought against an actor that is in essence “an arm of

the state” is similarly barred by the Eleventh Amendment. Id. at 658. The Eleventh

                                             11
Amendment does not, however, bar suits against officials in their individual capacities,

even if the actions that are the subject of the suit were part of the officials’ governmental

duties. Hafer v. Melo, 502 U.S. 21, 30-31 (1991). Since Munchinski has sued the

Prosecutors in their individual capacities, Eleventh Amendment immunity does not apply.

       Moreover, even without considering the individual capacity allegation, the

Amended Complaint does not demonstrate that the Prosecutors are entitled to Eleventh

Amendment immunity at this stage. To determine whether an actor is entitled to

Eleventh Amendment immunity, we consider: “(1) the source of funding—i.e., whether

payment of any judgment would come from the state’s treasury, (2) the status of the

agency/individual under state law, and (3) the degree of autonomy from state regulation.”

Carter v. City of Phila., 181 F.3d 339, 347 (3d Cir. 1999). Applying these factors

requires “a fact-intensive review that calls for individualized determinations.” Bowers v.

NCAA, 475 F.3d 524, 546 (3d Cir. 2007). We treat Eleventh Amendment immunity as

an affirmative defense, and “the party asserting [it] bears the burden of proving

entitlement to it.” Christy v. Pa. Tpk. Comm’n, 54 F.3d 1140, 1144 (3d Cir. 1995).

       From the pleadings, we cannot conclude that the Prosecutors are entitled to

Eleventh Amendment immunity. With respect to the first factor, even if the

Commonwealth would be required to pay for any judgment Munchinski might obtain,

this alone is insufficient to grant Eleventh Amendment immunity. Furthermore,

“Pennsylvania’s Constitution expressly defines District Attorneys as county rather than

                                             12
state officers.” Carter, 181 F.3d at 349 (emphasis omitted). While we do not rule out the

possibility that the Prosecutors may be able to adduce facts at some later stage in the

proceedings showing that they are entitled to sovereign immunity notwithstanding this

fact, see id. at 352-53 (recognizing that the possibility that Pennsylvania District

Attorneys could be considered state actors to the extent that they are enforcing state law

and performing other purely prosecutorial duties), such entitlement is not evident on the

record before us. Accordingly, we will affirm the District Court’s denial of Eleventh

Amendment immunity.

                                             III

       For the foregoing reasons, we will affirm the order of the District Court denying

the motion to dismiss based on absolute and Eleventh Amendment immunity other than

with respect to the conduct associated with the charging decision, for which the

Prosecutors are absolutely immune.




                                             13
