                                                            United States Court of Appeals
                                                                     Fifth Circuit
                  UNITED STATES COURT OF APPEALS                  FILED
                       for the Fifth Circuit                    May 25, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 06-30469


                          PAMELA VAN BUREN,

                                                  Plaintiff-Appellant,


                                VERSUS


 STEPHANIE CAVE, M.D.; ABC INSURANCE COMPANY; SHERRY BLACKWELL;
                        and JERI MURPHY,

                                                 Defendants-Appellees.




          Appeal from the United States District Court
              for the Middle District of Louisiana

                            (3:04-CV-152)


Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
     Appellant   Pamela   Van   Buren    (“Van   Buren”)    appeals           the
dismissal of her § 1983 lawsuit. For the reasons stated below, we
reverse and remand to the district court for further proceedings.
                                  I.



     *
          Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
                                1
       In   2001,     Van     Buren    sought       the     medical    services       of    Dr.
Stephanie      Cave     (“Dr.     Cave”)       for     a     “serious       illness”       that
“impaired her ability to function.” At or around the time medical
services were rendered, Van Buren wrote three checks to Dr. Cave:
(1) a $170.00 check for various herbs and supplements; (2) a
$500.00 check to cover the $375.00 office visit plus a portion of
the costs for testing; and (3) a $2832.00 check to cover the
remaining costs for testing. According to Van Buren, she told the
doctor’s office that she did not have $2832.00 in her account at
that   time    to     cover    the    third        check    and    requested       that    they
refrain from cashing the third check until she contacted them.
All three checks were promptly presented for payment and the
$2832.00      check    was    returned     unpaid.          Dr.    Cave’s    office       later
apologized for presenting the $2832.00 check for payment and
requested and received a replacement check for $2862.00 (which
included a $30.00 charge for the returned check). When Van Buren
gave Dr. Cave’s office the replacement check, she again requested
that they refrain from presenting the check until she notified
them that she had sufficient funds in her account. Ten months
passed, and Dr. Cave’s office presented the replacement check for
payment without contacting Van Buren. The check was returned
unpaid.
       Shortly thereafter, Sherry Blackwell (“Blackwell”), one of
Dr. Cave’s employees, contacted the District Attorney for East
Baton Rouge Parish, Louisiana for the purpose of bringing charges
against Van Buren for writing a worthless check. Jeri Murphy
(“Murphy”),      Ex    Officio        Notary       Public    for    the     19th    Judicial
District Court, prepared and notarized an affidavit in which

                                               2
Blackwell swore that Van Buren “unlawfully and feloniously, with
intent to defraud, violated LA R.S. 13:71, by issuing a worthless
check in the amount of $2862.00 drawn on Whitney [Bank] knowing
at the time of issuing said check there was not sufficient credit
with said bank for the payment in full of such check upon its
presentation.” Blackwell also swore that the check was returned
“ACCOUNT     CLOSED.”2    Based     on     this     affidavit,    the    district
attorney’s    office     procured   an     arrest    warrant,    had    Van   Buren
arrested, and prosecuted Van Buren for issuing worthless checks.
Ultimately, Van Buren was acquitted of all charges. She then
brought a civil lawsuit against Murphy, Dr. Cave, and Blackwell
in federal district court.3
     In her complaint, Van Buren alleged civil rights violations
under 42 U.S.C. § 1983 and false arrest, malicious prosecution,
and intentional infliction of emotional distress under Louisiana
state law. Murphy filed a motion to dismiss under Rule 12(b)(6),
arguing that any actions she took with respect to Van Buren’s
case (and she denied taking any illegal actions) were taken as an
employee of the District Attorney in furtherance of the District
Attorney’s    prosecutorial       duties    and   that   accordingly      she   was
entitled     to   absolute   immunity.4      The     district    court    granted

     2
          In her complaint, Van Buren emphasizes that the check was
returned “NSF,” indicating insufficient funds in her account. This
is relevant, according to Van Buren, because the prosecutor had a
lower burden of proof under the facts sworn by Blackwell.
     3
           Van Buren also named Dr. Cave’s insurer, ABC Insurance
Company, as a defendant. She does not pursue ABC Insurance Company
on appeal.
     4
          Murphy argued in the alternative (1) that as a state
actor, she was not a “person” under § 1983 subject to suit and (2)
                                 3
Murphy’s motion and dismissed her as a defendant. The district
court subsequently dismissed the remainder of Van Buren’s claims
sua sponte for lack of jurisdiction. According to the court,
federal    jurisdiction      was    lacking      once    Murphy       was    dismissed
because the remaining defendants were not state actors subject to
suit    under   §   1983    and    the   court     did   not     have       independent
jurisdiction over the state law claims. Van Buren timely filed a
notice of appeal.
                                         II.
       This Court reviews dismissals for lack of subject matter
jurisdiction and failure to state a claim de novo, construing the
dismissed complaint in the light most favorable to the plaintiff
and accepting all well-pleaded facts as true. See Johnson v.
Hous. Auth. of Jefferson Parish, 442 F.3d 356, 359 (5th Cir.
2006).
       In her first point of error, Van Buren argues that the
district court      erred    by    dismissing      Murphy   as    a     defendant    on
grounds of absolute immunity. She contends that Murphy is not
entitled to absolute immunity with respect to her actions in
initiating and pursuing judicial proceedings against Van Buren
because in so doing, Murphy knowingly prepared and notarized a
false    affidavit.    Van    Buren      equates    knowingly         preparing     and
notarizing a false affidavit with fabricating false evidence, and
she cites Buckley v. Fitzsimmons, 509 U.S. 259, 275 (1993), for
the proposition that prosecutorial immunity is not available to a



that she was entitled to qualified immunity because she acted in
good faith. The district court did not address these alternative
grounds for dismissal.
                                4
prosecutor   who        “fabricat[es]      false     evidence        during        the
preliminary investigation of an unsolved crime.” Murphy does not
present a brief on appeal.
      Generally, a prosecutor is entitled to absolute immunity “in
initiating a prosecution and in presenting the state’s case.”
Buckley, 509 U.S. at 270 (citing Imbler v. Pachtman, 424 U.S.
409, 431 (1976)). This immunity would even protect a prosecutor
who   fabricated       false   evidence    while    engaging    in    the     above
functions. See id. However, there is a fine line between “a
prosecutor’s acts in preparing for those functions, some of which
would be absolutely immune, and his acts of investigation or
‘administration,’ which would not.” Id. In Buckley, the Supreme
Court tried to define the fine line between the prosecutor qua
investigator, who is not entitled to absolute immunity, and the
prosecutor qua advocate, who is. Id. at 270-75. In this case, Van
Buren contends that Murphy falls to the investigator side of this
fine line, and that she is therefore not entitled to absolute
immunity for her alleged fabrication of false evidence.
      Assuming     a    notary   working    under     the   direction         of    a
prosecutor is entitled to the same immunity to which her boss is
entitled when she engages in conduct intimately associated with
the judicial process,5 then the issues we face are (1) whether
Murphy can be said to have fabricated false evidence under the
facts alleged in Van Buren’s complaint and (2) if Murphy can be
said to have fabricated false evidence under those facts, whether



      5
          Van Buren does not argue that a notary is never entitled
to absolute immunity, only that Murphy specifically is not entitled
to absolute immunity because she “fabricat[ed] false evidence.”
                                 5
she was acting as an “investigator” or an “advocate” at that
time. We conclude that Murphy can be said to have fabricated
false evidence under the facts pleaded by Van Buren and that she
was acting as an investigator when she did. However, we think it
important    to     note   that   our   decision   is    based   only   on   the
allegations pleaded by Van Buren. Our decision should not be read
as a blessing of Van Buren’s claims against Murphy, and we would
not reverse if we were not bound by the mandate that we affirm
only where we can conclude that the plaintiff “would not be
entitled to relief under any set of facts or any possible theory
that   he   could    prove   consistent     with   the   allegations    in   the
complaint.” See Muhammad v. Dallas County Cmty. Supervision &
Corr. Dep’t, 479 F.3d 377, 379-80 (5th Cir. 2007).
       Van Buren alleges in her complaint that
       (26) Defendant Blackwell swore out an affidavit for the
       purpose of having Plaintiff arrested. The warrant was
       prepared by and notarized by Defendant Murphy and gave
       the reason for the arrest as being that the post-dated
       check Plaintiff had given was given on an “ACCOUNT
       CLOSED,” which affidavit was false and known by
       Defendant Blackwell and Defendant Murphy to be false.

       (35) . . . When Defendant Murphy prepared the false
       affidavit of Defendant Blackwell, both Defendants knew
       or should have known the Two Thousand Eight Hundred and
       Sixty-two and No/100 ($2862.00) Dollar check was to be
       held until notice it would clear and no notice had been
       given. Defendant Murphy, also, knew from the check
       itself that Defendant Cave had held the check for ten
       (10) months before depositing it. Defendant Murphy,
       also, knew that the check had been returned “NSF” but
       prepared an affidavit that it was returned “ACCOUNT
       CLOSED.” The district attorney had a lesser burden of
       proof on an “account closed” check.

Taking these allegations as true, as we must, see Johnson, 442

                                        6
F.3d at 359, it can be said that Murphy prepared and notarized a
false affidavit with knowledge of the document’s falsity during
the process of initiating judicial proceedings against Van Buren.
This conduct is tantamount to fabricating false evidence. Under
Buckley, the question then becomes whether Murphy was acting as
an investigator or a prosecutor when she engaged in this conduct.
One black letter rule that can be gleaned from Buckley is that “A
prosecutor neither is, nor should consider himself to be, an
advocate before he has probable cause to have anyone arrested.”
509 U.S. at 274. In Buckley, the Court held that the prosecutor
had not had probable cause to arrest the defendant at the time he
allegedly fabricated false evidence where the alleged fabrication
occurred   well   before     a    special    grand    jury    was   empaneled      to
investigate the case, which in turn occurred months before the
defendant was finally arrested. Id. at 275. Here, although the
timeline is much shorter, probable cause clearly did not exist
before   Blackwell    approached      Murphy    to    begin    the       process   of
initiating proceedings against Van Buren. Accordingly, Murphy was
acting as an investigator, not an advocate, when she prepared and
notarized Blackwell’s affidavit, and the district court therefore
erred in dismissing her as a defendant under Rule 12(b)(6) on
grounds of absolute immunity. Because Murphy has not presented a
brief on appeal pursuing the alternative arguments she raised
before the district court, we leave it to that court to determine
whether Murphy may be entitled to immunity on other grounds.
     Further,     because    the    district   court    erred       in    dismissing
Murphy as a defendant, it necessarily follows that the court
erred in   dismissing       Van    Buren’s   claims    against      Dr.    Cave    and

                                        7
Blackwell for lack of jurisdiction.
                                    III.
     For   the   above   reasons,   we   REVERSE   the   decisions   of   the
district court dismissing Murphy as a defendant and dismissing
Van Buren’s claims against Dr. Cave and Blackwell, and we REMAND
for further proceedings consistent with this decision.


GARWOOD, Circuit Judge, notes his dissent.




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