          United States Court of Appeals
                     For the First Circuit


No. 18-2261

                         ROLANDO PENATE,

                      Plaintiff, Appellee,

                               v.

                         ANNE KACZMAREK,

                      Defendant, Appellant,

 KRIS FOSTER; RANDALL RAVITZ; JOSEPH BALLOU; ROBERT IRWIN; RANDY
THOMAS; SONJA FARAK; SHARON SALEM; JAMES HANCHETT; JULIE NASSIF;
LINDA HAN; ESTATE OF KEVIN BURNHAM; STEVEN KENT; JOHN WADLEGGER;
         GREGG BIGDA; EDWARD KALISH; CITY OF SPRINGFIELD,

                           Defendants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

      [Hon. Katherine A. Robertson, U.S. Magistrate Judge]


                             Before

                   Lynch, Kayatta, and Barron,
                         Circuit Judges.


     David H. Rich, with whom Maria T. Davis and Todd & Weld, LLP
were on brief, for appellant.
     Luke Ryan, with whom Sasson, Turnbull, Ryan & Hoose was on
brief, for appellee.
     Matthew R. Segal, American Civil Liberties Union Foundation
of Massachusetts, Inc., Emma Quinn-Judge, Monica Shah, and Zalkind
Duncan & Bernstein LLP on brief for American Civil Liberties Union
of Massachusetts and Massachusetts Association of Criminal Defense
Lawyers, amici curiae.
June 26, 2019
           LYNCH,     Circuit     Judge.     This   appeal    presents    novel

questions about the scope of absolute prosecutorial and government

attorney immunity from claims asserted under 42 U.S.C. § 1983.

           Appellee Rolando Penate filed this § 1983 action against

seventeen defendants after the dismissal with prejudice of his

2013 Massachusetts criminal conviction for drug distribution.

This appeal is from an order denying absolute immunity to one of

those defendants, Anne Kaczmarek, a former Massachusetts Assistant

Attorney   General.       Penate's    complaint     alleged   that    Kaczmarek

unlawfully     withheld    (and    worked    with    others   to     unlawfully

withhold) exculpatory evidence from Penate's counsel; from the

Hampden County, Massachusetts District Attorney, whose office

prosecuted Penate in Hampden County Superior Court; and from that

state court.    The withheld evidence showed that a drug laboratory

chemist, Sonja Farak, had been battling drug addiction and had

tampered with samples she was assigned to test around the time she

tested the samples in Penate's case.           Kaczmarek had obtained the

evidence at issue while she was prosecuting Farak on state charges

of tampering with evidence and drug possession.

           After the magistrate judge rejected Kaczmarek's motion

to dismiss on grounds of absolute immunity, Penate v. Kaczmarek,

No. 17-cv-30119, 2018 WL 6437077, at *16 (D. Mass. Dec. 7, 2018),

Kaczmarek filed this interlocutory appeal.            We affirm.




                                     - 3 -
              We are required to "make two important assumptions about

the case: first, that [Penate's] allegations are entirely true;

and, second, that they allege constitutional violations for which

§ 1983 provides a remedy."         Buckley v. Fitzsimmons, 509 U.S. 259,

261 (1993); see also Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 28

(1st Cir. 1995).        The first of these assumptions is critical here,

as our rejections of Kaczmarek's novel claims to absolute immunity

are fact-bound conclusions.

              After recounting the allegations in the complaint and

the history of this suit, we address Kaczmarek's two theories for

absolute immunity.1        She first argues that she enjoys absolute

prosecutorial        immunity    because   the    conduct   alleged     in   the

complaint occurred during the time period when she was assigned to

prosecute Farak.        We reject this argument because, on the facts

alleged      in   the   complaint,     Kaczmarek's     decision   to   withhold

evidence      from   the   criminal    prosecution     of   Penate     lacked   a

"functional tie" to her prosecutorial role in Farak's separate

case.       Buckley, 500 U.S. at 277.          Kaczmarek alternatively seeks

absolute immunity on the ground that, in performing some conduct

alleged in the complaint, she functioned as an advocate for the

government in an evidentiary hearing associated with the criminal

case against Penate.        But certain allegations in the complaint are


        1     Kaczmarek    has   not   raised    the   defense    of   qualified
immunity.


                                       - 4 -
best read to allege that Kaczmarek played an administrative role

concerning this hearing.       On that basis, we reject this second

argument for absolute immunity.

                                      I.

A.   Facts Alleged in the Complaint

            Penate   was   charged    by     the   Hampden   County   District

Attorney with several drug-related offenses on November 16, 2011.

The suspected drugs were sent to the Massachusetts Department of

Public Health's Amherst Drug Lab and were assigned to Farak for

analysis.    Farak reported that the substances from Penate's case

had all tested positive for the presence of controlled substances.

            Farak tested the samples on December 22, 2011, January

6, 2012, and January 9, 2012.        Also on December 22, Farak entered

on a Diary Card kept as part of her treatment for drug addiction

that she "tried to resist using [at] work but ended up failing."

            Farak later placed this Diary Card in the trunk of her

car, where, as discussed below, it was found, along with similar

worksheets, by the state police.           Those documents revealed that,

during the period that the lab held the samples in Penate's case,

Farak had struggled with drug addiction, had frequently consumed

drugs while at work, and had often tampered with and used drug

samples and supplies held by the lab.              At the heart of this case

is Kaczmarek's failure to disclose this exculpatory evidence to




                                     - 5 -
Penate, to his prosecutor, and to the court in his criminal

proceeding.2

           The charges against Penate were still pending when the

Massachusetts      Attorney   General's    Office    (AGO   or    AG)   began

investigating Farak for misconduct at the Amherst Drug Lab.               On

January 19, 2013, AGO investigators obtained a warrant to search

Farak's car, searched the car, and seized hundreds of pages of

paper, including the Diary Card and other mental health worksheets.

           Farak was charged with tampering with evidence and drug

possession on January 22, 2013.         Kaczmarek, a prosecutor in the

AG's Enterprise and Major Crimes Unit, was assigned to prosecute

Farak, who ultimately pleaded guilty in January 2014.

           The complaint then tracks the AGO's actions related to

the   exculpatory    evidence    that   Penate    claims    was   unlawfully

withheld during his criminal proceeding.          The Diary Card and other

mental    health    worksheets    first    went     unmentioned    or    were


      2   Penate also claims that Kaczmarek somehow violated his
constitutional rights by artificially narrowing the scope of the
investigation against Farak, after Farak had been arrested and
arraigned. But, because that claim concerns Kaczmarek's choices
regarding the course of a prosecution she was actually conducting,
after a probable cause determination had been made, absolute
immunity does bar it.     See Buckley, 509 U.S. at 273 ("[A]cts
undertaken by a prosecutor 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, are entitled to the
protections of absolute immunity."); see also Kalina v. Fletcher,
522 U.S. 118, 129 (1997) (holding that a prosecutor's "activities
in connection with the preparation and filing of . . . charging
documents . . . are protected by absolute immunity").


                                   - 6 -
characterized as "assorted lab paperwork" by investigators in

police reports and returns for search warrants.           "This was not an

oversight," the complaint alleges, "but reflected a collective

decision on the part of Kaczmarek, . . . [Police Sergeant Joseph]

Ballou, and . . . [others] to deny the existence of this highly

probative evidence."     The complaint then alleges that, around the

same time, Kaczmarek discouraged Ballou from following up on an

allegation of evidence tampering by Farak in 2005.

           In February 2013, Ballou attached copies of the Diary

Card and other mental health worksheets to an email to Kaczmarek

with the subject line "FARAK Admissions."          "Here are those forms

with the admissions of drug use I was talking about," he wrote.

           In March, neither the Diary Card nor the other mental

health worksheets were included in the packets of evidence related

to Farak provided to all of the Massachusetts District Attorneys.

The packets were accompanied by a letter from the head of the AG's

Criminal Bureau, John Verner; the letter explained that the AG was

investigating   Farak    and   stated,      "Pursuant   to   this   office's

obligation to provide potentially exculpatory information to the

District   Attorneys    as   well   as   information    necessary   to   your

Offices' determination about how to proceed with cases in which

related narcotic evidence was tested at the Amherst Laboratory,

please find the below listed materials . . . ."




                                    - 7 -
              That same day in March, Kaczmarek submitted to Verner

and    her    other   supervisors    a    Prosecution     Memo   that   contained

multiple      references    to      Farak's      mental    health     worksheets.

Kaczmarek stated that the worksheets had "not been submitted to

the [Farak] grand jury out of an abundance of caution," although

"[c]ase law" indicated that "the paperwork [was] not privileged."

Verner responded with a hand-written note telling her that these

documents had "NOT" been "turned over to DAs offices yet."

              Despite this withholding of the mental health worksheets

from the District Attorneys (and later from Penate and the Hampden

County Superior Court), Kaczmarek did disclose the worksheets to

Farak's defense attorney.          In doing so, Kaczmarek told the defense

that    the    documents   would    not    be    turned   over   to   any   "Farak

defendants" (that is, defendants seeking relief based on Farak's

misconduct) and that the AG's office considered the documents to

be "privileged."

              Penate, who was awaiting his trial on the criminal

charges, filed a motion to dismiss in July 2013 based on the

charges against Farak.        The judge ordered an evidentiary hearing

on the issue of Farak's misconduct between November 2011 and

January 2012, when the lab had custody of the substances from

Penate's case.         Penate's motion was consolidated with similar

motions from about a dozen Farak-defendant cases pending in Hampden

County Superior Court.        A hearing in these consolidated motions


                                         - 8 -
on the timing and scope of Farak's misconduct was scheduled for

September 9, 2013.

             Before the hearing, Assistant District Attorney Eduardo

Velazquez, who was prosecuting Penate, sought any exculpatory

evidence for the hearing from the AGO.             He was told that all

relevant evidence had already been provided to the DAs, even though

the mental health worksheets, as Verner had noted, had "NOT" been

disclosed.

             Ballou received a subpoena duces tecum for the hearing

on the consolidated motions "command[ing] the production of all

documents and photographs pertaining to the investigation of Sonja

Farak and the Amherst Drug Lab."3      Assistant Attorney General Kris

Foster, from the AGO's Appeals Division, was assigned to handle

the response to the subpoena.        In meetings about how to respond

to   the   subpoena,   Kaczmarek   divulged   to   Foster   and   Foster's

supervisor, Randall Ravitz, that she and Ballou possessed the

mental health worksheets.      But Kaczmarek took the position that

these documents were irrelevant to the Farak defendants.          She also




      3   Before Penate's motion was consolidated with the other
Farak defendants' motions, Penate served Ballou and Kaczmarek with
subpoenas to testify at the evidentiary hearing ordered in Penate's
case. However, the complaint does not allege that Kaczmarek was
subpoenaed to appear at the post-conviction proceeding.         The
allegations in the complaint about Kaczmarek recounted in the
following paragraphs all pertain to the Ballou subpoena and a
related court order.


                                   - 9 -
urged that the documents should not be produced because several

contained information about Farak's mental health treatment.

             Foster filed a motion to quash the subpoena.     In the

alternative, Foster sought a protective order excluding from the

scope of the subpoena information including "emails responsive to

the subpoena" and "information concerning the health or medical or

psychological treatment of individuals."

             Ballou testified at the hearing on the consolidated

motions.      At Foster's instruction, Ballou did not reveal the

existence of the mental health worksheets.        During the hearing,

the judge ordered Foster to review Ballou's "file" on Farak and to

present to the court for in camera review copies of any undisclosed

documents in the file.

             Foster, Kaczmarek, and Verner discussed whether the

order required Ballou to submit his emails to Kaczmarek about

Farak.     Kaczmarek ultimately asked Ballou to bring his file about

the case to Boston for her to review.          The paper file Ballou

brought to Boston contained none of the mental health worksheets,

so Kaczmarek told Foster that all of the documents in Ballou's

file had already been disclosed.         Foster then sent the judge a

letter stating that "every document in [Ballou's] possession has

already been disclosed."

             The day Foster sent the letter, Penate's counsel emailed

Foster requesting to inspect the documents seized from Farak's


                                - 10 -
car.    Foster forwarded the email to Kaczmarek, who responded: "No.

Why is this relevant to this case.                 I really don't like him."

Foster told Penate's counsel that the AG's position was that the

evidence from the car was irrelevant to any case other than

Farak's.

              Penate's motion to dismiss the criminal charges was

denied   by    the     state    court    based   on   a   finding   that   Farak's

misconduct began after she handled the samples in Penate's case.

Although Penate subpoenaed Kaczmarek to testify at his trial,

Foster's      motion    to     quash    the   subpoena    was   granted,   as    was

Velazquez's motion in limine to preclude Penate from arguing that

Farak was engaged in misconduct between November 2011 and January

2012.    In December 2013, Penate was convicted of one count of

Distributing a Class A substance and was sentenced to five to seven

years in prison.

              In October 2014, an inspection of the evidence found in

Farak's car for a different Massachusetts criminal case revealed

the Diary Card and the other mental health worksheets.                          This

discovery prompted Verner, the head of the AG's Criminal Bureau,

to send copies of all of the documents seized in the car to the

Massachusetts DAs in November 2014.

              Based on the newly produced evidence, Penate filed a

motion for a new trial in 2015, which was again consolidated with

the cases of other Farak defendants.                  These defendants sought


                                        - 11 -
discovery from the AGO on prosecutorial misconduct by attorneys in

that office.    In opposing the discovery, the AGO represented:

            The    defendants'     proposed    claim    of
            prosecutorial misconduct based on actions by
            the Attorney General's Office fails for the
            very simple fact that the AGO is not the
            prosecutor of any of these cases. Certainly,
            the AGO prosecuted Sonja Farak; but this is
            not Farak's case. Instead, in these cases the
            AGO was a non-party from which the defendants
            previously sought expansive post-conviction
            discovery. In that capacity, the AGO was well
            supported by case law in presenting arguments
            opposing the proposed discovery requests, just
            as any other non-party might do.

            In January 2017, Penate's motion for a new trial was

allowed, with the assent of the Hampden County DA.    In June 2017,

a judge dismissed Penate's conviction with prejudice.        The judge

found that "Kaczmarek's and Foster's deliberate withholding of

exculpatory evidence was particularly egregious in the Penate

case" and "qualifies as a fraud upon the court."

B.   History of this Suit

            Penate filed this suit on September 5, 2017 in federal

district court in Massachusetts.        His complaint asserted two

claims against Kaczmarek: the § 1983 claim already mentioned and

a state tort law claim for intentional infliction of emotional

distress.    Under Massachusetts law, Kaczmarek's immunity from the

tort claim falls with her immunity from the § 1983 claim.4         See



     4    Kaczmarek's opening brief on appeal argues in a single
paragraph that the tort claim is also "barred by the general


                               - 12 -
Chicopee Lions Club v. Dist. Att'y for Hampden Dist., 485 N.E.2d

673, 677 (Mass. 1985).

               Count IV of the complaint asserts § 1983 violations by

Kaczmarek, Foster, and Foster's supervisor, Ravitz.                It alleges

that       Kaczmarek   knew   that   the   mental    health   worksheets   were

exculpatory evidence in the cases of Farak defendants like Penate

and that Kaczmarek had a duty under Brady v. United States, 373

U.S. 83 (1963), to disclose such evidence and to make truthful

statements about such evidence.            In paragraph 433, the complaint

states that Kaczmarek, Foster, and Ravitz, "prior to, during, and

following Plaintiff's trial, intentionally, recklessly, and/or

with deliberate indifference to their legal obligations, concealed

Brady material, lied about, and otherwise failed to disclose Brady

material       to   the   Hampden    County    ADA   prosecuting   Plaintiff."

Paragraph 434 alleges the same failure to disclose, to "Plaintiff's

counsel and the Hampden County Superior Court." 5                  Count VIII


Massachusetts common law litigation privilege." But Kaczmarek did
not raise this defense in the district court, the magistrate judge
did not rule on it, and we do not consider it. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990); see also Espinal-
Dominguez v. Puerto Rico, 352 F.3d 490, 495-96 (1st Cir. 2003)
(describing the scope of appellate jurisdiction from non-final
district court orders).
       5  In the order denying Kaczmarek's motion to dismiss, the
magistrate judge recounted the complaint's allegations that
Kaczmarek conspired with investigators to mischaracterize the
mental health worksheets as "lab paperwork" and that Kaczmarek
discouraged Ballou from following up on a lead. See Penate, 2018
WL 6437077, at *14. To the extent these allegations are offered
to support a claim that Kaczmarek violated Penate's constitutional


                                      - 13 -
alleged that this conduct by Kaczmarek amounted to the intentional

infliction of emotional distress.

          Kaczmarek's motion to dismiss the complaint argued that

she was entitled to absolute immunity, raising the two theories

previously identified.     The magistrate judge denied the motion

because Penate's claims against Kaczmarek were "not related to her

prosecution of Farak," Penate, 2018 WL 6437077, at *16, and because

Kaczmarek was not engaged in a function analogous to a prosecutor's

when she worked on the requests for exculpatory information in the

AG's and Ballou's possession, see id. at *15.

                                 II.

A.   Jurisdiction, Standard of Review, and Kaczmarek's Burden

          We   have   jurisdiction   over   Kaczmarek's   interlocutory

appeal from the denial of immunity because it "turns on a purely

legal question."      Limone v. Condon, 372 F.3d 39, 50 (1st Cir.

2004); see also Filler v. Kellett, 859 F.3d 148, 152 (1st Cir.



rights by artificially narrowing the scope of the investigation
against Farak, we have held, in footnote 2, supra, that Kaczmarek
is absolutely immune.
          Penate argues in his brief that these factual
allegations were made in support of paragraph 433 of the complaint,
which alleges that Kaczmarek failed to disclose exculpatory
evidence to the DAs, including to the DA prosecuting Penate. And
Kaczmarek admits in her reply brief that these allegations could
properly be used to support the theory in paragraph 433. To the
extent the facts are alleged for this purpose, we agree with Penate
that these two factual allegations are well-pleaded and need not
be disregarded as conclusory. See Ocasio-Hernández v. Fortuño-
Burset, 640 F.3d 1, 14 (1st Cir. 2011) (defining well-pleaded
facts).


                               - 14 -
2017)     (lacking    interlocutory      jurisdiction       because   immunity

depended    on    facts   requiring    further   development).        Penate's

complaint alleges the facts necessary to evaluate Kaczmarek's

defense; we are required to take those facts as true at this stage;

and Kaczmarek, in any event, does not dispute them.                   The only

question is whether, on those facts, Kaczmarek is entitled to

absolute immunity and thus to dismissal of the complaint.

             Our review is de novo.       Garnier v. Rodríguez, 506 F.3d

22, 26 (1st Cir. 2007).        We start with "[t]he presumption . . .

that    qualified    rather   than    absolute   immunity    is   sufficient."

Burns v. Reed, 500 U.S. 478, 486 (1991).            And Kaczmarek, as the

"official seeking absolute immunity[,] bears the burden of showing

that such immunity is justified."          Id. at 486.       That burden is a

heavy one.       See, e.g., Buckley, 509 U.S. at 269 ("[W]e have been

'quite sparing' in recognizing absolute immunity for state actors

. . . ." (quoting Forrester v. White, 484 U.S. 219, 224 (1988)).

             Kaczmarek has not satisfied it here, either on her first

theory that she is entitled to absolute prosecutorial immunity

because she prosecuted Farak or on her second theory that she

should enjoy the absolute immunity afforded to certain government

attorneys.       We address these theories in turn.

B.      Absolute Prosecutorial Immunity

             The Supreme Court first recognized the absolute immunity

of prosecutors from certain § 1983 claims in Imbler v. Pachtman,


                                     - 15 -
424 U.S. 409 (1976).           There, the Court held that prosecutors are

absolutely immune in exercising the core prosecutorial functions

of "initiating a prosecution and . . . presenting the State's

case."    Id. at 431.

             Following       Imbler,     the   Court     has    used    a    "functional

approach"    to     decide     whether      state    officials    are       entitled     to

absolute immunity from particular § 1983 claims.                       Burns, 500 U.S.

at 486.      This approach looks to "the nature of the function

performed, not the identity of the actor who performed it,"

Forrester,      484   U.S.     at    229,   nor     to   "the   particular        act"   in

isolation, Mireles v. Waco, 502 U.S. 9, 12 (1991) (per curiam)

(citing Stump v. Sparkman, 435 U.S. 349, 356 (1978)).

             Applying this approach, the Supreme Court has recognized

that several "functions of contemporary prosecutors are entitled

to absolute immunity."              Buckley, 509 U.S. at 269. These include:

"appearing before a judge and presenting evidence in support of a

motion    for   a     search    warrant,"      Burns,     500    U.S.       at   491,    and

"prepar[ing] and filing . . . [a criminal] information and [a]

motion for an arrest warrant," Kalina v. Fletcher, 522 U.S. 118,

129 (1997).       The basic "principle" of these cases is "that acts

undertaken by a prosecutor 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, are entitled to the

protections of absolute immunity."                Buckley, 509 U.S. at 273.


                                         - 16 -
            But the Supreme Court has rejected claims to absolute

prosecutorial immunity where the prosecutor's conduct lacked a

"functional    tie   to    [a]   judicial     process"   initiated   by    the

prosecutor.    Id. at 277.       So, absolute immunity does not protect

prosecutors when they give advice to police during a criminal

investigation, Burns, 500 U.S. at 495-96, fabricate evidence long

before a grand jury has made an indictment, Buckley, 509 U.S. 275-

76, or make statements to the press in announcing an indictment,

id. at 276-78.    These functions have been deemed "administrative"

or "investigative," and, in exercising them, "a prosecutor is in

no different position than other executive officials," such as

police, and "qualified immunity is the norm for them."                  Id. at

278.

            All of these Supreme Court cases involved claims arising

out of criminal proceedings which were initiated by the same

officials who were seeking absolute prosecutorial immunity.                But

Kaczmarek   was   not     Penate's   prosecutor; 6 she    rests   her     broad

assertion of absolute prosecutorial immunity on her role as Farak's

prosecutor.    Kaczmarek's claim is thus a novel one, as neither the


       6  Kaczmarek's agency, the AGO, had no control over
Penate's prosecution and thus Kaczmarek cannot, and indeed does
not, claim to have been his prosecutor. See Kulwicki v. Dawson,
969 F.2d 1454, 1467 (3d Cir. 1992) (denying prosecutor lacking
"official control over" a prosecution prosecutorial immunity based
on that prosecution). Indeed, the AG, for whom Kaczmarek worked,
admitted that it was not Penate's prosecutor but rather "was a
non-party from which [Penate] . . . sought . . . discovery."


                                     - 17 -
Supreme     Court    nor    this    court    has    ever    extended       absolute

prosecutorial immunity to conduct by a prosecutor in a proceeding

not initiated by that prosecutor or by an office that prosecutor

supervises.7

            Absolute immunity is not triggered here by the simple

fact that the conduct alleged in the complaint occurred while

Kaczmarek was pursuing the commonwealth's criminal charges against

Farak.      See Filler, 859 F.3d at 153 ("Importantly, absolute

immunity    does    not    necessarily      apply   to    all    actions    that   a

prosecutor may take once the 'judicial phase' begins."); Guzman-

Rivera, 55 F.3d at 29 (observing that absolute prosecutorial

immunity does not "extend[] to all conduct that facilitates the

prosecutorial function").          As the Supreme Court has emphasized,

"the actions of a prosecutor are not absolutely immune merely

because they are performed by a prosecutor."                    Buckley, 509 U.S.

at   273.     Rather,      under   the   functional      approach,    Kaczmarek's

defense turns on the following question: was Kaczmarek functioning

as Farak's prosecutor when she withheld evidence from Penate's

proceeding?        See id. at 277 (asking whether the prosecutor's


      7   The Supreme Court held in Van de Kamp v. Goldstein, 555
U.S. 335 (2009), that prosecutors were entitled to absolute
immunity   for   supervising  their   office's  compliance   with
constitutional disclosure requirements. Id. at 348. As Kaczmarek
did not work in or otherwise have control over the office of the
DA prosecuting Penate, her claim to absolute prosecutorial
immunity does not come under the rubric of Van de Kamp. See id.
at 345.


                                     - 18 -
conduct had any "functional tie to the judicial process"); Burns,

500 U.S. at 495 (asking whether "the prosecutor's actions are

closely    associated       with    the    judicial    process"     the      prosecutor

initiated).

            Key facts alleged in the complaint answer that question

in the negative.           The most significant fact is that Kaczmarek

turned over the mental health worksheets to Farak's defense.                      This

shows that, when Kaczmarek orchestrated the withholding of that

very same evidence in Penate's case, she did not do so because

keeping the evidence under wraps was helpful to her prosecution of

Farak.     On the complaint's facts, we conclude jurors could find

that    Kaczmarek's        decisions      about    disclosure      of   evidence     in

Penate's    case    were     not    made    based     on   her   role     as    Farak's

prosecutor.         The     absence    of    this     "functional       tie"    between

Kaczmarek's prosecutorial duties and her conduct in Penate's case,

if     proven,     would     doom     Kaczmarek's       assertion       of     absolute

prosecutorial immunity.            Buckley, 509 U.S. at 277.

            The ties Kaczmarek points to do not show that she

withheld evidence in Penate's case as part of her advocacy in

Farak's    case.      Kaczmarek       emphasizes      that   her    involvement      in

Penate's case occurred "in the midst of her criminal prosecution"

of Farak.        But, as we have already explained, the functional

approach and the principle that prosecutorial immunity is not

coextensive with the judicial phase of the criminal process require


                                          - 19 -
that determinations about immunity turn not on accidents of timing

but on careful analyses of the functions being performed.

             Kaczmarek also stresses that her "obligations" to Penate

"arose solely because of her . . . role as Farak's prosecutor."

Kaczmarek possessed the evidence at issue because she was Farak's

prosecutor, "but that connection is too tenuous" to show that

Kaczmarek functioned as a prosecutor when she withheld the evidence

from Penate's case.     Lampton v. Diaz, 639 F.3d 223, 227 (5th Cir.

2011); see also id. at 227-28 (denying immunity for prosecutor's

disclosure of tax records acquired during prosecution to state

ethics board); Yarris v. Cty. of Delaware, 465 F.3d 129, 137-38

(3d   Cir.    2006)   (denying     absolute   prosecutorial     immunity   to

prosecutors who withheld evidence in post-conviction proceedings

assigned to other prosecutors, even though the prosecutors had

acquired the evidence at issue through their roles as prosecutors

in the initial criminal proceedings); Guzman-Rivera, 55 F.3d at 29

("The prosecutorial nature of an act does not spread . . . like an

inkblot, immunizing everything it touches.").

             Kaczmarek's   final    attempt   to   cast   her   function   in

Penate's case as entitled to prosecutorial immunity, based on Reid

v. New Hampshire, 56 F.3d 332 (1st Cir. 1995), misses because it

trains its sights on Kaczmarek's conduct rather than on her

function.     The prosecutors in Reid enjoyed absolute immunity from

claims that they intentionally withheld evidence while trying the


                                    - 20 -
plaintiff on criminal charges.        Id. at 337; see also Campbell v.

Maine, 787 F.2d 776, 778 (1st Cir. 1986) (per curiam) (same).

Kaczmarek argues that she is entitled to immunity just the same

because, like the prosecutors in Reid, she "used her discretion to

evaluate" the evidence at issue and to determine that the evidence

was "irrelevant" to Penate.

            But Reid explained that absolute immunity attaches "when

a   prosecutor    evaluates   evidence   and    interviews     witnesses   in

preparation for trial," 56 F.3d at 337 (citing Buckley, 509 U.S.

at 273), and that one aspect of this immunity-protected function

is "determin[ing] what evidence . . . [i]s exculpatory and subject

to disclosure" to the defense, id.; see also Warney v. Monroe Cty.,

587 F.3d 113, 125 (2d Cir. 2009) ("[T]he disclosure of [Brady]

evidence to opposing counsel is an advocacy function."); Imbler,

424 U.S. at 431 n.34 (analogizing withholding exculpatory evidence

to a prosecutor's use of perjured testimony during trial).            Reid's

holding    thus   rested   not   on   "the    act    itself"   --   analyzing

potentially exculpatory evidence -- but on "the nature and function

of the act" -- analyzing evidence in preparation to present the

state's case.     Mireles, 502 U.S. at 13 (internal quotation marks

omitted); see also Buckley, 509 U.S. at 276 n.7 (confirming that

immunity   for    "obtaining,    reviewing,    and    evaluating    evidence"

depends on whether those actions were taken in an "administrative"

or prosecutorial capacity (quoting Imbler, 424 U.S. at 431 n.33)).


                                   - 21 -
            That police are afforded qualified immunity from Brady

claims further illustrates that the function for which the evidence

is analyzed, not the act of analyzing potentially exculpatory

evidence,    controls   the   type     of   immunity.      See    Drumgold   v.

Callahan, 707 F.3d 28, 38 (1st Cir. 2013) (denying claim of

qualified immunity by police officer for suppression of evidence).

Indeed, the operative allegations in Count IV of the complaint

allege that Kaczmarek withheld Brady material, as a police officer

might, by "concealing Brady material," from the court where Penate

was tried and from Penate's prosecutor.

            Finally, the functional tie present in Reid is absent

here: we have already concluded that Kaczmarek's decisions to

withhold evidence in Penate's case were not, on the facts alleged,

an aspect of her preparation to present the state's case against

Farak.   In short, Kaczmarek does not enjoy absolute prosecutorial

immunity    from   Penate's   suit    because   of   her   role    as   Farak's

prosecutor.

C.   Absolute Immunity of Government Attorneys

            The next issue is Kaczmarek's theory that she enjoys

absolute immunity because she was a government attorney performing

an advocacy function when she advised Foster on the AGO's responses

to the Ballou subpoena and to the subsequent court order requiring

disclosure of documents.




                                     - 22 -
             This theory of immunity is derived from Butz v. Economou,

438 U.S. 478 (1978), which held that "agency officials" enjoy

absolute immunity in "performing certain functions analogous to

those of a prosecutor," including "initiat[ing] administrative

proceedings" and "presenting evidence in an agency hearing."         Id.

at 515-16.     Butz itself involved claims against, among others, a

Department     of    Agriculture    attorney   who   had   brought    an

administrative enforcement proceeding against the plaintiff.         Id.

at 482.

             Kaczmarek cites to out-of-circuit cases extending Butz

to officials appointed to initiate civil proceedings for the

government or to defend the government in civil proceedings.8        See,

e.g., Schrob v. Catterson, 948 F.2d 1402, 1413 (3d Cir. 1991)

(initiating a civil forfeiture proceeding)); Murphy v. Morris, 849

F.2d 1101, 1105 (8th Cir. 1988) (defending government in a civil

suit); Barrett v. United States, 798 F.2d 565, 572-73 (2d Cir.

1986) (same).9      She argues that these cases and Butz hold that



     8    This circuit has not extended Butz to government
attorneys outside the administrative context.      We have granted
absolute immunity to, for example, members of a state medical
licensing board in initiating a licensure revocation proceeding,
Wang v. N.H. Bd. of Registration in Med., 55 F.3d 698, 701 (1st
Cir. 1995), and to officers at a state insurance bureau in deciding
to settle a violation through consent agreement rather than
administrative proceeding, Knowlton v. Shaw, 704 F.3d 1, 6 (1st
Cir. 2013).
     9   Kaczmarek likens herself to state government attorneys
granted immunity by the Second Circuit in Barrett for their


                                   - 23 -
"government     attorneys     who   are   not    formally     designated     as

prosecutors are also entitled to absolute immunity when their

function is intimately associated with the judicial process."

That reading is undoubtedly too broad.              Butz involved agency

attorneys with assigned roles in a quasi-judicial administrative

proceeding.      And    the   out-of-circuit    cases   involved      attorneys

appointed to represent the government in initiating or defending

a civil proceeding.       No case has extended absolute immunity to a

government attorney like Kaczmarek for merely assisting, behind

the scenes, in a state's response to a court request for documents.

And we do not believe that such an extension is "necessary to

protect the judicial process."        Burns, 500 U.S. at 485.

             But, even assuming that Butz immunity were as broad as

Kaczmarek argues it is, her theory would fail on its own terms.

The facts alleged in the complaint do not support it.                See Odd v.

Malone, 538 F.3d 202, 208 (3d Cir. 2008) (emphasizing the "fact-

intensive     nature"    of   the   functional     approach     to     absolute

immunity).

             To recap the basic events, the subpoena duces tecum

received by Ballou "command[ed] the production of all documents



assignment to defend the state in a civil suit filed in state
court.   798 F.2d at 573.   But that holding does not encompass
Kaczmarek's claim to immunity.     As we have already explained,
Kaczmarek did not represent the DA in the Penate prosecution.
And, as we will explain, Kaczmarek was not the AGO's designee to
respond to the discovery requests.


                                    - 24 -
and photographs pertaining to the investigation of Sonja Farak and

the Amherst Drug Lab."     Later, the judge ordered Ballou to produce

any previously undisclosed evidence in his file.           Foster was the

AGO attorney responsible for handling the AGO's answers to the

subpoena and court order.       She had conversations with Kaczmarek

and others in the course of formulating these responses.

              As we read the core facts alleged in the complaint, in

these conversations with Foster, Kaczmarek primarily functioned as

a custodian of evidence.      This is an administrative function not

"analogous" to the advocacy of a prosecutor, Butz, 438 U.S. at

515,    nor   otherwise   intimately   associated   with    the   judicial

process,10 see Odd, 538 F.3d at 213 (denying claim of absolute

immunity for a "primarily administrative" function); see also,

e.g., Knowlton v. Shaw, 704 F.3d 1, 5 (1st Cir. 2013) ("Absolute

immunity . . . is not available to . . . officials whose actions

are primarily administrative . . . ."); Perez v. Ellington, 421

F.3d 1128, 1133 (10th Cir. 2005) ("Absolute immunity does not




       10 Kaczmarek also argues, relying on Van de Kamp, that she
is absolutely immune because she advised Foster, whom the district
court found to be absolutely immune, see Penate, 2018 WL 6437077,
at *14. Van de Kamp, however, granted immunity to supervisors of
prosecutors and to the prosecutor's "colleagues" who shared an
"intimate[] association with the judicial phase of the criminal
process."   See 555 U.S. at 345-46.    Kaczmarek was not Foster's
supervisor. And our conclusion that Kaczmarek could be found not
to have shared such an association with the judicial phase of the
criminal process distinguishes her from the hypothetical
colleagues the Supreme Court deemed immune in Van de Kamp.


                                 - 25 -
extend   to    actions   'that       are      primarily    investigative     or

administrative in nature' . . . ." (quoting Pfeiffer v. Hartford

Fire Ins. Co., 929 F.2d 1484, 1490 (10th Cir. 1991)).

            That   Kaczmarek    acted      as    an   evidence   custodian   is

consistent first of all with the AG's own description of its role

in Penate's proceeding.        The AGO represented to the state court

evaluating Penate's motion for a new trial that the AG was "not

the prosecutor" of Penate's case.               Instead, the AG stated that,

in responding to the subpoena and court order, it had been a

"non-party    from   which     the     defendants       . . .    sought   . . .

discovery."    "In that capacity," the AGO claimed to have acted "as

any other non-party might."          Our characterization of Kaczmarek's

function follows from this admission by the AG that it was "not

the prosecutor" but rather a non-party simply providing requested

evidence.

            Other key facts alleged confirm this characterization as

to Kaczmarek herself.    Kaczmarek's role in the AG's Enterprise and

Major Crimes Unit was to prosecute crimes.              A different unit, the

Appeals Division, where Foster worked, handled the AGO's responses

to subpoenas.      Kaczmarek, in other words, was involved in the

response to the subpoena and court order only because she was the

person familiar with the materials requested.             The complaint thus

alleges that Kaczmarek's primary role was to inform Foster about




                                     - 26 -
the existence, or non-existence, of responsive documents among

those materials.

             In performing this role, Kaczmarek "serv[ed] the same

non-adversarial function as police officers . . . and other

clerical state employees" able to identify and describe evidence

in government possession.       Yarris, 465 F.3d at 138 (holding that

former prosecutors who stonewalled requests to test evidence acted

not   like    prosecutors    entitled    to    absolute    immunity   but    as

"custodian[s] of evidence").         This function, whether performed by

a government lawyer like Kaczmarek or by a police officer, is an

administrative one, not analogous to the advocacy of a prosecutor,

nor otherwise closely associated with the judicial process.                 See

id. at 137-38.

             The administrative nature of this role here is further

apparent in the nature of the subpoena and order.              The subpoena

requested all relevant documents and the order any previously

undisclosed     documents.      Informing      Foster     whether   documents

responsive    to   such   explicit    orders    existed    among    the   Farak

materials did not require advocacy by Kaczmarek.               In this, our

view is consistent with Odd v. Malone, 538 F.3d at 213 (Hardiman,

J.), which held that a prosecutor responsible for "informing the

court about the status of a detained witness" was performing an

administrative function.      Id. at 213.      There, too, the function's

administrative nature was "especially" clear "in light of" the


                                  - 27 -
fact   that    the       court's    order    requesting       the   information   was

"explicit."        Id.

              To the extent Kaczmarek did use discretion or legal

knowledge in advising Foster, that does not change our conclusion

that Kaczmarek's primary function was an administrative one not

entitled      to    absolute       government      attorney    immunity.     As    we

explained in the previous section, it is the function for which

evidence is evaluated, not the act of analyzing evidence itself

which controls the type of immunity.                   And, here, the complaint

alleges that Kaczmarek's primary function in analyzing the Farak

materials was an administrative one -- to inform Foster whether

those materials were responsive.

                                            III.

              The district court's denial of the motion to dismiss is

affirmed.




                                        - 28 -
