                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ROBERT WAGGY,                             
               Plaintiff-Appellant,               No. 09-35133
               v.
                                                   D.C. No.
                                               2:07-cv-00264-FVS
SPOKANE COUNTY WASHINGTON;
STEVE TUCKER; KELLY FITZGERALD,                     OPINION
           Defendants-Appellees.
                                          
         Appeal from the United States District Court
            for the Eastern District of Washington
         Fred L. Van Sickle, District Judge, Presiding

                   Argued and Submitted
           December 10, 2009—Seattle, Washington

                      Filed February 5, 2010

     Before: Ronald M. Gould and Richard C. Tallman,
   Circuit Judges, and Roger T. Benitez,* District Judge.

                   Opinion by Judge Tallman




  *The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.

                                2113
2116        WAGGY v. SPOKANE COUNTY WASHINGTON
                         COUNSEL

Richard D. Wall, P.S., Spokane, Washington, for the plaintiff-
apellant.

Hugh T. Lackie, Heather C. Yakely (argued), Evans, Craven
& Lackie, P.S., Spokane, Washington, for the defendants-
appellees.


                          OPINION

TALLMAN, Circuit Judge:

   Plaintiff-Appellant Robert Mark Waggy (“Waggy”), a con-
victed sex offender, was arrested on harassment charges while
serving part of his original sentence on community placement
in Spokane, Washington. The day after he posted bond and
was released, he was again arrested pursuant to a bench war-
rant issued due to his failure to progress in his court-imposed
sexual deviancy treatment program. Based on this latter arrest
for violation of his required supervision, he brought suit under
42 U.S.C. § 1983, claiming that the Spokane County prose-
cuting attorneys and the county violated his constitutional
right to be free from arrest without probable cause. The dis-
trict judge awarded absolute immunity to the deputy prosecut-
ing attorney and found that the plaintiff had failed to allege
sufficient facts to warrant trial against the county. We affirm.

                               I

   On September 29, 2000, Waggy pled guilty to Third
Degree Rape of a Child and Second Degree Child Molesta-
tion. He was sentenced to 41 months of incarceration and an
additional 36 months of community placement supervision
following his release from prison. As a condition of his super-
vised placement, Waggy was ordered to attend a sexual devi-
            WAGGY v. SPOKANE COUNTY WASHINGTON            2117
ancy treatment program, which progressed from individual
counseling sessions to peer support group classes once per
week. Though he affirmatively took responsibility for the
actions leading to his conviction, Waggy’s statements during
his counseling sessions evinced a fixation on having his chil-
dren returned to his custody while he continually blamed oth-
ers for the separation from his children.

   During his group counseling session on March 19, 2004,
Waggy informed his counselor that if his children were not
returned to him by April 20, 2004, he planned to kill John
Traylor (“Traylor”), a Washington Department of Social and
Health Services (“DSHS”) caseworker, whom Waggy blamed
for removing his children from his custody. Waggy also stated
his intent to conduct a shooting rampage at a local elementary
school and made references to the upcoming anniversary of
the massacre at Columbine High School in Colorado. Pursu-
ant to statutory reporting obligations, Waggy’s counselor
divulged these statements to Waggy’s Community Correc-
tions Officer and to a supervisor at the Department of Correc-
tions. The supervising corrections officer visited Waggy’s
home to investigate the reported threats and then imposed
additional conditions on Waggy’s community placement.
Under these new conditions, Waggy was (1) prohibited from
having contact with Traylor, (2) ordered to remain no less
than two blocks away from the DSHS building in Spokane
where Traylor worked, and (3) required to obey all laws.

   Spokane Police Department Detective Jeffrey Holy
(“Detective Holy”) was assigned to investigate Waggy’s
threats against Traylor. On April 16, 2004, Detective Holy
drafted a report detailing his investigation into Waggy’s crim-
inal threats. The detective also completed a charging sheet,
affidavit of probable cause, and a request for issuance of a
prosecutor’s complaint and arrest warrant. The documentation
was forwarded to Spokane County Deputy Prosecuting Attor-
ney Kelly Fitzgerald (“DPA Fitzgerald”), the prosecutor han-
2118        WAGGY v. SPOKANE COUNTY WASHINGTON
dling matters dealing with Waggy’s prosecution and
community placement.

   On April 19, 2004, the day before the actions he threatened
were to commence, Waggy was arrested on one count of Fel-
ony Harassment. He posted bond later that day and was
released. Then, on April 20—the fourth anniversary of the
Columbine shootings—Todd Wiggs, a supervisor at the
Department of Corrections, had a telephone conversation with
DPA Fitzgerald where they discussed that Waggy’s behavior
and subsequent arrest could constitute a violation of the terms
of his supervision. In his deposition, Wiggs testified that he
and DPA Fitzgerald determined it would be best to secure
Waggy in police custody as soon as possible based on the vio-
lent threats he was making and because he had failed to make
progress in his deviancy treatment program.

   DPA Fitzgerald submitted a request for a bench warrant,
attaching an order and a motion for an arrest warrant, as well
as the same affidavit of facts Detective Holy had submitted on
the harassment charge two days prior. A Spokane County
Superior Court judge issued a warrant for Waggy’s failure to
make satisfactory progress in his sexual deviancy treatment
program and Waggy was arrested that same day. He was held
in the Spokane County Jail for 67 days, at which time he was
placed on electronic home monitoring. He was released from
this monitoring around August 20, 2004.

   Waggy then brought this civil rights action in the Eastern
District of Washington under 42 U.S.C. § 1983 against Spo-
kane County, Spokane County Prosecutor Steve Tucker
(“Tucker”), and DPA Kelly Fitzgerald. He claimed civil rights
violations stemming from false arrest and imprisonment under
state law, a violation of his due process rights, and respondeat
superior liability against the county. The complaint also
alleged a failure by Tucker in his official capacity to ade-
quately train and supervise DPA Fitzgerald in the perfor-
              WAGGY v. SPOKANE COUNTY WASHINGTON                      2119
mance of her duties as a prosecuting attorney.1 District Judge
Fred Van Sickle granted summary judgment to all defendants,
holding that DPA Fitzgerald was entitled to absolute immu-
nity, and that Waggy had failed to point to any evidence that
the county either had an unconstitutional policy or practice, or
that it had failed to properly train DPA Fitzgerald. Waggy
then timely appealed.

                                    II

   Waggy presents three claims. First, he alleges that Judge
Van Sickle improperly granted absolute prosecutorial immu-
nity to DPA Fitzgerald, shielding her from liability. Second,
he argues that the county maintained a constitutionally imper-
missible practice of securing bench warrants against persons
under supervision. Finally, he contends that even if the policy
was facially valid, Spokane County failed to adequately train
and supervise its prosecutors in such a way that they might
not violate his civil rights.

   We have jurisdiction to review a district court’s grant of
summary judgment under 28 U.S.C. § 1291, and our review
is de novo. Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892,
896 (9th Cir. 2008). In doing so, we view the evidence in the
light most favorable to Waggy, the non-moving party. Nurre
v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009). A grant
of summary judgment is inappropriate if there is “any genuine
issue of material fact or the district court incorrectly applied
the substantive law.” Blankenhorn v. City of Orange, 485
  1
    While Waggy brought this claim against Prosecuting Attorney Tucker
in the district court, it appears either that he has abandoned this argument
on appeal, see Fed. R. App. P. 28(a)(5) & (a)(9)(A); Acosta-Huerta v.
Estelle, 7 F.3d 139, 144 (9th Cir. 1992), or that it has been subsumed into
his claim against the county. Nothing in the briefing before us indicates
that Waggy has brought the same claim against Tucker on appeal, though
Tucker remains listed as a party. To avoid any uncertainty, we affirm sum-
mary judgment in favor of Tucker as well.
2120        WAGGY v. SPOKANE COUNTY WASHINGTON
F.3d 463, 470 (9th Cir. 2007). After reviewing the record
before us and the district court’s legal conclusions, we affirm.

                               A

   [1] We first examine whether DPA Fitzgerald was entitled
to absolute immunity because she was acting as a criminal
prosecutor when she secured a warrant for Waggy’s arrest. “A
state prosecuting attorney enjoys absolute immunity from lia-
bility under § 1983 for [her] conduct in ‘pursuing a criminal
prosecution’ insofar as [s]he acts within [her] role as an
‘advocate for the State’ and [her] actions are ‘intimately asso-
ciated with the judicial phase of the criminal process.’ ” Cous-
ins v. Lockyer, 568 F.3d 1063, 1068 (9th Cir. 2009) (quoting
Imbler v. Pachtman, 424 U.S. 409, 410, 430-31 (1976)).
However, prosecutors are entitled to only qualified immunity
“when they perform investigatory or administrative functions,
or are essentially functioning as police officers or detectives.”
al-Kidd v. Ashcroft, 580 F.3d 949, 958 (9th Cir. 2009) (citing
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)). The bur-
den rests on the prosecutor to show that she is entitled to
absolute immunity. Id.

   “As the Supreme Court has acknowledged, the distinction
between the roles of ‘prosecutor’ and ‘investigator’ is not
always clear.” Id.; see also Imbler, 424 U.S. at 431 n.33
(“Drawing a proper line between these functions may present
difficult questions . . . .”). “To determine whether an action
is judicial, investigative, or administrative, we look at ‘the
nature of the function performed, not the identity of the actor
who performed it.’ ” Cousins, 568 F.3d at 1068 (quoting
Kalina v. Fletcher, 522 U.S. 118, 127 (1997)). We explained
further in al-Kidd:

    While the “duties of the prosecutor in his role as
    advocate for the State involve actions preliminary to
    the initiation of a prosecution and actions apart from
    the courtroom,” absolute prosecutorial immunity will
            WAGGY v. SPOKANE COUNTY WASHINGTON               2121
    be given “only for actions that are connected with
    the prosecutor’s role in judicial proceedings, not for
    every litigation-inducing conduct.”

580 F.3d at 958 (internal citations omitted).

   [2] The Supreme Court has held that absolute immunity
protects a prosecutor who is appearing in court in support of
a warrant application, presenting evidence at a hearing, or
preparing for either the initiation of judicial proceedings or
trial. Van de Kamp v. Goldstein, 129 S. Ct. 855, 861 (2009);
Kalina, 522 U.S. at 125. However, a prosecutor sheds abso-
lute immunity when she acts as a “complaining witness” by
certifying that the facts alleged within an affidavit are true.
Kalina, 522 U.S. at 132 (Scalia, J., concurring). The analysis
is conducted on a “function-by-function basis,” al-Kidd, 580
F.3d at 959, and the question turns on whether the court at
common law would have provided protection for the specific
prosecutorial function, Miller v. Gammie, 335 F.3d 889, 897
(9th Cir. 2003) (en banc) (citing Antoine v. Byers & Ander-
son, Inc., 508 U.S. 429, 435-36 (1993)).

   Here, Waggy alleges that DPA Fitzgerald was not acting in
a judicial capacity when she sought a bench warrant for his
arrest following a probation violation. Instead, he argues that
she was transformed into a “complaining witness” by attesting
to facts in support of the bench warrant. He likens the factual
scenario in the instant case to that presented to the Supreme
Court in Kalina.

   In Kalina, the Court refused to shield the deputy prosecutor
from liability under a theory of absolute immunity. 522 U.S.
at 131. To satisfy a state requirement that an arrest warrant be
supported by either an affidavit or sworn testimony, Kalina,
the deputy prosecuting attorney, had submitted a “Certifica-
tion for Determination of Probable Cause,” which summa-
rized the evidence in support of a burglary charge. Id. at 121.
DPA Kalina went on to personally vouch, under penalty of
2122        WAGGY v. SPOKANE COUNTY WASHINGTON
perjury, for the veracity of the statements contained within the
certification. Id. After the superior court found that probable
cause existed and had issued an arrest warrant, it came to light
that Kalina’s certification contained factual inaccuracies. Id.

   The Supreme Court compared Kalina’s certification under
penalty of perjury to statements that might be made by “any
competent witness.” Id. at 129-30. The function of the com-
plaining witness was not protected by absolute immunity at
common law. Id. at 127. It was instead “the generally
accepted rule . . . that one who procured the issuance of an
arrest warrant by submitting a complaint could be held liable
if the complaint was made . . . without probable cause.” Id.
at 127 n.14 (quoting Malley v. Briggs, 475 U.S. 335, 340-341
(1986) (footnote omitted)). The Court concluded that
“[t]estifying about facts is the function of the witness, not of
the lawyer,” and therefore any person who makes such state-
ments is not entitled to absolute immunity. Id. at 130-31. It
did not matter what title that person held.

   Waggy points to the documents DPA Fitzgerald submitted
in support of the warrant application to prove that she was
acting outside her role as a judicial advocate and that she
instead became the functional equivalent of a complaining
witness. DPA Fitzgerald’s application for a bench warrant to
arrest Waggy included: (1) a motion and order requesting that
a bench warrant issue; (2) the supporting Affidavit of Facts
completed by Detective Holy for the felony harassment
charge; (3) an additional follow-up report from Detective
Holy dated April 16, 2004; and (4) a report from the Depart-
ment of Corrections to the presiding judge regarding the
court’s specially-imposed conditions as of March 31, 2004.
Waggy argues that the only documentation attesting to his
supervision violation is DPA Fitzgerald’s motion and order.
He claims that the remaining documents are devoid of any
indication that he violated the terms of his restrictions. This,
he says, is evidence that DPA Fitzgerald’s actions were not
that of a lawyer, but instead those of a complaining witness.
            WAGGY v. SPOKANE COUNTY WASHINGTON              2123
   However, Waggy is mistaken and his reliance on Kalina
misplaced. We think this case is more akin to Tanner v. Heise,
879 F.2d 572, 578 (9th Cir. 1989), where the plaintiff, Steve
Tanner, alleged that the prosecutor for the City of Bonners
Ferry, Idaho, had conspired with a local magistrate judge to
issue an invalid bench warrant for his arrest. The district court
granted the prosecutor absolute immunity because he was
“acting in a judicial or quasi-judicial capacity” when he
sought the bench warrant. Id. (quoting Tanner v. Heise, 672
F. Supp. 1356, 1359 (D. Idaho 1987), rev’d on other grounds,
879 F.2d 572 (9th Cir. 1989) (citation omitted)). We agreed,
holding that the prosecutor acted within his authority because,
under the facts as alleged by Tanner, the prosecutor was
essentially being sued for instituting a prosecution. Id.

   [3] Contrary to Waggy’s assertion, DPA Fitzgerald’s
motion for a bench warrant essentially constituted the initia-
tion of new judicial proceedings against him for violating the
terms of his community placement, and was not an investiga-
tive act undertaken by DPA Fitzgerald. The motion explicitly
states that it “is based upon the records and files” attached as
exhibits. It explains to the court how Waggy violated the
terms of his supervision and directs the judge to the attached
documents as evidence of the supporting facts. While it is true
that DPA Fitzgerald was the only person to argue that the
facts alleged by Detective Holy constituted a violation of
Waggy’s conditions of supervision as directed by the Depart-
ment of Corrections and the sentencing court, her actions
were those of an attorney and not of a sworn witness. Present-
ing a motion which states the law and attaching affidavits
averring to the facts “clearly involve[s] the prosecutor’s ‘role
as advocate for the State,’ rather than [her] role as ‘adminis-
trator or investigative officer.” Burns v. Reed, 500 U.S. 478,
491 (1991) (quoting Imbler, 424 U.S. at 430-31). Further, the
act of procuring a bench warrant is one “intimately associated
with the judicial phase of the criminal process,” Imbler, 424
U.S. at 430, as it is normally part of the initiation of criminal
2124        WAGGY v. SPOKANE COUNTY WASHINGTON
proceedings, see Sweat v. Arkansas, 469 U.S. 1172, 1177
(1985) (Brennan, J., dissenting from denial of certiorari).

   [4] Therefore, we conclude that where a prosecutor sub-
mits a motion for a bench warrant to the court applying the
law to facts alleged in supporting affidavits signed by wit-
nesses, she is acting not in an investigative capacity, but
instead as a judicial advocate before the court. This entitles
her to absolute prosecutorial immunity from suit for civil
rights claims arising from the discharge of her duties.

                                B

   [5] We turn next to Waggy’s two claims against Spokane
County. Municipalities are considered “persons” under 42
U.S.C. § 1983 and thus may be liable for causing a constitu-
tional deprivation. Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 690 (1978). “[I]t is only when execution of a govern-
ment’s policy or custom inflicts the injury that the municipal-
ity as an entity is responsible.” Long v. County of Los
Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing Monell,
436 U.S. at 690). A policy has been defined as “a deliberate
choice to follow a course of action . . . made from among var-
ious alternatives by the official or officials responsible for
establishing final policy with respect to the subject matter in
question.” Id. (additional citations omitted).

   [6] It is well established in our precedent that “[a] policy
can be one of action or inaction.” Id. (citing City of Canton
v. Harris, 489 U.S. 378, 388 (1989)). Both types of claims
require that the plaintiff prove a constitutional violation. 42
U.S.C. § 1983; see also Long, 442 F.3d at 1186 (“To impose
liability against a county for its failure to act, a plaintiff must
show . . . that a county employee violated the plaintiff’s con-
stitutional rights . . . .”); Erdman v. Cochise County, 926 F.2d
877, 882 (9th Cir. 1991) (“In order to establish [plaintiff’s]
right to proceed to trial on his municipal liability claim, the
court must first determine that a constitutional violation has
            WAGGY v. SPOKANE COUNTY WASHINGTON              2125
occurred . . . .”). Additionally, in order to prove that an “ac-
tion” policy is unconstitutional, the claimant “must . . . dem-
onstrate that his deprivation resulted from an official policy or
custom established by a municipal policymaker possessed
with final authority to establish that policy.” Erdman, 926
F.2d at 882. Under an “inaction” policy claim, “a plaintiff can
allege that through its omissions the municipality is responsi-
ble for a constitutional violation committed by one of its
employees.” Long, 442 F.3d at 1185. In Canton, the Supreme
Court held that a municipality’s failure to train its employees
is one such claim of omission or inaction by the municipality.
489 U.S. at 392.

   [7] Waggy asserts a claim under each type of policy. First,
he argues that Spokane County had a constitutionally imper-
missible policy, practice, or custom that was violative of his
rights. However, as the district court properly held, he failed
to allege any facts supporting this claim. He points us to no
express county policy or custom, and he provides no evidence
showing even an inference that such a procedure exists.
Because he has created no genuine issue of material fact as to
the county’s policies, practices, or customs, we hold that the
district court did not err in granting summary judgment on
this claim. See In re Joye, 578 F.3d 1070, 1074 (9th Cir.
2009) (“Summary judgment is appropriate where the evidence
demonstrates that there are no genuine issues of material fact
for trial and the moving party is entitled to judgment as a mat-
ter of law.”).

   For the same reason the district court properly granted sum-
mary judgment to Spokane County on Waggy’s second claim
—that of inaction by the county. He insists that the county
violated his constitutional rights by conducting inadequate
training and supervision of its prosecutors in securing bench
warrants. Here, he fails to provide any facts indicating either
what training practices were employed by the county at the
time of the alleged constitutional violation, or what type of
constitutionally-mandated training was lacking. Summary
2126        WAGGY v. SPOKANE COUNTY WASHINGTON
judgment was properly granted on this claim because there is
no genuine issue of material fact created as to the county’s
procedures regarding the supervision or training of its prose-
cutors. See id.

                              III

   We hold that the district court properly awarded absolute
immunity to DPA Fitzgerald for her actions because she was
acting as a judicial advocate for the State before the court, and
not as a complaining witness. Furthermore, summary judg-
ment in favor of Spokane County was proper because on this
record there exist no triable issues of material fact as to Spo-
kane County’s policies regarding how prosecutors secure
bench warrants for the arrest of an individual under supervi-
sion.

  AFFIRMED.
