                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAR 21 2001
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 RODNEY POWELL,

                Plaintiff-Appellant,                      No. 00-2378
           v.                                           (D. New Mexico)
 NELSON SPEAR, individually and                 (D.C. No. CIV-00-852-MV/LFG)
 officially as a member of the Fifth
 Judicial Court of Lea County,

                Defendant-Appellant.


                              ORDER AND JUDGMENT          *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, ordered submitted without oral argument.

       Rodney Powell, a New Mexico state prisoner proceeding pro se, appeals

the district court’s order dismissing his civil rights complaint sua sponte pursuant


       *
        This order and judgment is not binding precedent, except under the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.
to 28 U.S.C. §1915(e)(2) and Fed. R. Civ. P. 12(b)(6). The court ruled that Mr.

Powell’s complaint was barred by New Mexico’s three-year statute of limitations

for personal injury actions.    See N.M. Stat. Ann. § 37-1-8 (Repl. Pamp. 1990);

Garcia v. Wilson , 731 F.2d 640, 651 (10th Cir. 1984) (holding that the state

statute of limitations for personal injury actions applies to § 1983 claims),     aff’d ,

471 U.S. 261 (1985).

       In his complaint, Mr. Powell alleged that the defendant Nelson Spear, an

assistant district attorney, violated his constitutional rights by failing to disclose

exculpatory material prior to a preliminary hearing in a robbery prosecution.        See

Brady v. Maryland , 373 U.S. 83, 87 (1963) (holding “that the suppression by the

prosecution of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution”);      United States v.

Hughes , 33 F.3d 1248, 1251 (10th Cir. 1994) (discussing the elements necessary

to establish a Brady violation). Pursuant to 42 U.S.C. § 1983, he sought

compensatory and punitive damages.

       Mr. Powell acknowledged that the preliminary hearing at issue occurred on

August 2, 1998. However, he added that he did not discover that the defendant

Mr. Spear withheld the evidence until June 1998, when he received a brief from

the defendants in related civil litigation.    See Rec. doc. 1, at 2 (complaint


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alleging that “in Powell v. Carter . . . it was learned that [Mr.] Spear omitted

exculpatory evidence from the Plaintiff’s Magistrate Court Preliminary

Hearing”).

       In dismissing the complaint as untimely, the district court observed that the

applicable statute of limitations for § 1983 actions in New Mexico is three years

and that the alleged withholding of evidence occurred in August 1995, almost

five years before the date on which Mr. Powell filed the complaint, June 12,

2000. The court also noted that the exculpatory evidence was ultimately admitted

at Mr. Powell’s trial and that Mr. Powell was acquitted of the charges.

Additionally, Mr. Powell acknowledged that the verdict of acquittal was rendered

on January 2, 1996, four and a half years before he filed this action.

       On appeal, Mr. Powell argues that the district court erred in refusing to

consider his allegation that he did not discover the   Brady violation until June

1998 and that, as a result, the statute of limitations did not begin to run until that

date. We conclude that Mr. Powell’s argument does not warrant reversal of the

district court’s decision. Even if the statute of limitations was tolled, Mr.

Powell’s § 1983 claim is foreclosed by the doctrine of prosecutorial immunity.

       Under that doctrine, “state attorneys and agency officials who perform

functions analogous to those of a prosecutor in initiating and pursuing civil and

administrative enforcement proceedings” are “absolutely immune from suit under


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§ 1983 concerning activities ‘intimately associated with the judicial . . .

process.’” Pfeiffer v. Hartford Fire Ins. Co.    , 929 F.2d 1484, 1490 (10th Cir.

1991) (quoting Imbler v. Pachtman , 424 U.S. 409, 430-31 (1976)). A

prosecutor’s withholding of evidence is an action “intimately associated” with the

judicial process.   See Imbler , 424 U.S. at 431 n.34 (rejecting the argument that

the failure to disclose such evidence is not associated with the judicial process);

see also Robinson v. Volkswagenwerk AG , 940 F.2d 1369, 1373 n.4 (10th Cir.

1991) (“Whether the claim involves withholding evidence, failing to correct a

misconception or instructing a witness to testify evasively, absolute immunity

from civil damages is the rule for prosecutors.”).

       Accordingly, in light of the defendant Mr. Spear’s absolute immunity,

dismissal of Mr. Powell’s complaint for failure to state a claim was proper. We

therefore AFFIRM the judgment of the district court.


                                         Entered for the Court,


                                         Robert H. Henry
                                         United States Circuit Judge




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