11-2258-cv
Lawlor v. Connelly

                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT
                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER").
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

     At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 11th day of June, two thousand twelve.
PRESENT:
             RALPH K. WINTER,
             JOSEPH M. McLAUGHLIN,
             DENNY CHIN,
                       Circuit Judges.

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ROBERT LAWLOR,
          Plaintiff-Appellant,

             v.                                         11-2258-cv

JOHN CONNELLY,
          Defendant-Appellee.
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FOR PLAINTIFF-APPELLANT:             NORMAN A. PATTIS, The Pattis Law
                                     Firm, LLC, Bethany, Connecticut.

FOR DEFENDANT-APPELLEE:              MATTHEW B. BEIZER, Assistant
                                     Attorney General, for George
                                     Jespen, Attorney General of the
                                     State of Connecticut, Hartford,
                                     Connecticut.

             Appeal from a judgment of the United States District

Court for the District of Connecticut (Hall, J.).
             UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.
          Plaintiff-appellant Robert Lawlor appeals from the

district court's judgment of May 6, 2011, dismissing the

complaint.   The judgment was entered pursuant to a written ruling

dated May 5, 2011, granting defendant-appellant John Connelly's

motion to dismiss, holding that he was absolutely immune from

suit under 42 U.S.C. § 1983.   We assume the parties’ familiarity

with the underlying facts, procedural history of the case, and

the issues on appeal.

          We review the district court's grant of a motion to
dismiss de novo.   See Licci ex rel. Licci v. Lebanese Canadian

Bank, SAL, 672 F.3d 155, 156 (2d Cir. 2012) (per curiam).

          We affirm substantially for the reasons set forth in

the district court's thorough and carefully-considered ruling of

May 5, 2011.

          Lawlor's main claim is that Connelly withheld

exculpatory evidence from the investigatory grand jury.    This

Court has repeatedly held, however, that a prosecutor is

absolutely immune from liability under 42 U.S.C. § 1983 for his
conduct before a grand jury.   See Bernard v. Cnty. of Suffolk,
356 F.3d 495, 505 (2d Cir. 2004) (prosecutor immune from suit for

alleged misconduct in the presentation of evidence to grand

jury); Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995)

(prosecutorial immunity covers virtually all acts associated with

prosecutor's function as an advocate); see generally Burns v.
Reed, 500 U.S. 478 (1991); Imbler v. Pachtman, 424 U.S. 409

(1976).   Moreover, this Court has specifically held that a

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prosecutor is immune from § 1983 liability for withholding

exculpatory evidence from a grand jury.   See Hill, 45 F.3d at

661.

            Lawlor also argues that when Connelly submitted the

application for the grand jury "upon oath," he acted as a fact

witness, and is therefore not entitled to absolute immunity.      In

support of this argument, Lawlor relies heavily on the Supreme

Court's decision in Kalina v. Fletcher, 522 U.S. 118 (1997).

That case, however, is distinguishable from this one.    In Kalina,

the Court held that the prosecutor was not absolutely immune from

liability because she acted as a witness rather than an advocate.

Kalina, 522 U.S. at 130-31.    Specifically, the prosecutor had

sworn to an affidavit that could have been sworn to by "any

competent witness."   Id.   Here, by contrast, Connelly was

required by statute to certify the application to the grand jury.

See Conn. Stat. § 54-47c.    No "witness" was permitted to do so.

Therefore, Connelly did not act as a witness, but rather in his

capacity as an advocate.1
            The fact that the grand jury was an "investigatory"

grand jury -- a unique feature of Connecticut law -- is of no

import.    Indeed, the same immunity principles apply to a

prosecutor's actions before a Connecticut "investigatory" grand

jury as apply to a prosecutor's actions before a grand jury that



       1
          Indeed, as the parties agree, the witness from whom the
exculpatory evidence was purportedly available -- Lawlor's
partner -- testified at the grand jury hearing.
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has the power to indict.   See Powers v. Coe, 728 F.2d 97, 104 (2d

Cir. 1984).   In light of these principles, the district court

correctly concluded that Connelly's actions were protected by

absolute immunity.

          We have considered Lawlor's other arguments on appeal

and have found them to be without merit.   Accordingly, the

judgment of the district court is hereby AFFIRMED.

                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




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