                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-4-2008

Odd v. Malone
Precedential or Non-Precedential: Precedential

Docket No. 06-4287




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                                 PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                 No. 06-4287
                 No. 07-1490


                KORVEL ODD,

                      v.

               THOMAS MALONE;
OFFICE OF DISTRICT ATTORNEY OF PHILADELPHIA,

                            Appellants


            NICOLE SCHNEYDER,

                            Appellant

                       v.

              GINA SMITH, Esquire;
OFFICE OF DISTRICT ATTORNEY OF PHILADELPHIA,
      On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
            (D.C. Nos. 06-cv-02242/06-cv-04986)
District Judges: Honorable Norma L. Shapiro and Honorable
                        Jan E. Dubois


                Argued January 8, 2008
  Before: FISHER, HARDIMAN and ALDISERT, Circuit
                       Judges.

                   (Filed: August 4, 2008)

Daniel Silverman (Argued)
Silverman & Associates
1429 Walnut Street, Suite 1001
Philadelphia, PA 19102
       Attorney for Appellee Odd
       Attorney for Appellant Schneyder

Ronald Eisenberg (Argued)
Three South Penn Square
Philadelphia, PA 19107
      Attorney for Appellants Thomas Malone
      and Office of District Attorney of Philadelphia
      Attorney for Appellees Gina Smith
      and Office of District Attorney of Philadelphia



                              2
                  OPINION OF THE COURT




HARDIMAN, Circuit Judge.

       These consolidated appeals concern the scope of
prosecutorial immunity. In both cases, prosecuting attorneys
obtained bench warrants to detain material witnesses whose
testimony was vital to murder prosecutions. Although the
attorneys diligently obtained the warrants, they neglected to
keep the courts informed of the progress of the criminal
proceedings and the custodial status of the witnesses. The
question before us is whether the attorneys are entitled to
absolute prosecutorial immunity for their omissions.

        In No. 07-1490, we decide whether a prosecutor may be
sued under 42 U.S.C. § 1983 for failing to notify the relevant
authorities that the proceedings in which the detained individual
was to testify had been continued for nearly four months. In No.
06-4287, we decide whether a prosecutor may be sued for
failing to notify the relevant authorities that the material witness
remained incarcerated after the case in which he was to testify
had been dismissed.

                                 I.

      Because we review the District Courts’ rulings on
Federal Rule of Civil Procedure 12(b)(6) motions to dismiss, our

                                 3
recitation of the facts is limited to those alleged in Plaintiffs’
complaints. Yarris v. County of Delaware, 465 F.3d 129, 134
(3d Cir. 2006). We accept those facts as true and draw all
reasonable inferences in Plaintiffs’ favor. Id.

A.     Plaintiff-Appellant Nicole Schneyder (No. 07-1490)

        Nicole Schneyder was a reluctant but essential witness in
three attempts by the Commonwealth of Pennsylvania to convict
Michael Overby of first-degree murder. See Commonwealth v.
Overby, 809 A.2d 295, 298-99 (Pa. 2002). In the first two trials,
the court declared Schneyder unavailable and admitted her
sworn statement into evidence. Id. at 299. The second jury
convicted Overby and sentenced him to death, but the
Pennsylvania Supreme Court ordered a new trial, holding that
the handling of Schneyder’s testimony violated Overby’s Sixth
Amendment right to confront the witnesses against him. Id. at
299-300.

        In preparing to prosecute Overby a third time,
Philadelphia Assistant District Attorney (ADA) Gina Smith
obtained a material witness bench warrant for Schneyder’s arrest
from Judge Rayford Means of the Philadelphia County Court of
Common Pleas. After a January 27, 2005 bail hearing,
Schneyder, who was represented by a public defender, was
detained after she failed to post the $300,000 bail set by the
court. At that time, Judge Means directed ADA Smith in open
court, and again in his robing room, to notify him of any delays
in the Overby case, which was assigned to another judge.
Schneyder alleges that Judge Means made clear that he intended


                                4
to release Schneyder in the event of a continuance, and that
Smith acknowledged this admonition on the record.

        On February 2, 2005, the Overby trial was continued until
May 25, 2005. In spite of the court’s directive, Smith failed to
notify Judge Means of the continuance, and Schneyder remained
incarcerated.

        Schneyder and various family members repeatedly
telephoned ADA Smith requesting Schneyder’s release, but
Smith took no action. When Schneyder’s father died on
February 28, 2005, her sister hired attorney Paul Conway, who
obtained a court order permitting Schneyder to attend her
father’s March 4, 2005 funeral. After obtaining the order, which
permitted Schneyder to attend only a few minutes of the funeral
in handcuffs, Conway learned that Judge Means had instructed
ADA Smith to notify him if the Overby case was continued.
Conway notified Judge Means of the continuance, and
Schneyder was promptly released on March 21, 2005, 54 days
after she was first detained and 48 days after the Overby case
was continued.

B.     Plaintiff-Appellee Korvel Odd (No. 06-4287)

       Korvel Odd’s experience was remarkably similar to that
of Nicole Schneyder. Odd was reluctant to testify in the murder
prosecution of Alvin Way, Jr. See Commonwealth v. Way, MC
No. 0403-5118. Odd had witnessed events immediately
preceding the murder, but when subpoenaed to testify at a
preliminary hearing, he failed to appear. Consequently,
Philadelphia ADA Thomas Malone sought a bench warrant for

                               5
Odd’s arrest. The presiding judge in Way — Judge Marsha
Neifield of the Philadelphia Court of Common Pleas — issued
a “judge-only warrant” 1 pursuant to which Odd was arrested on
November 17, 2004. Odd never had a bail hearing before Judge
Neifield, but at ADA Malone’s insistence, a trial commissioner
ordered Odd to remain in custody for Way’s preliminary hearing
on December 7, 2004.

       On December 7, 2004, Odd was transported to the
courthouse, but ADA Malone never called him to testify. Judge
Neifield then dismissed the case against Way for lack of
evidence. Because Malone never informed Judge Neifield that
Odd had been arrested, she did not know that he remained
detained and took no action to release him. Consequently, Odd
was returned to prison.

       Odd eventually requested assistance from the Defender
Association of Philadelphia, and attorney Glenn Gilman brought
Odd’s plight to Judge Neifield’s attention. “Furious,” Judge
Neifield released Odd after 58 days of incarceration on January
13, 2005, and she “demanded that [Malone] appear before her
to explain why . . . plaintiff had been forced to remain in jail.”

       In addition to their case-specific allegations, Schneyder
and Odd further allege that, according to local custom and
practice, the sole responsibility for tracking and monitoring the


       1
          A “judge-only warrant” requires that the issuing judge
be informed if and when the individual named in the warrant is
arrested.

                                6
status of detained material witnesses falls to the Philadelphia
District Attorney’s Office (DA’s Office) and the individual
ADAs.

C.     The District Court Proceedings

       Schneyder and Odd sued the DA’s Office and the ADAs
under 42 U.S.C. § 1983, alleging that they were detained
without probable cause in violation of the Fourth and Fourteenth
Amendments. In Schneyder’s case, the District Court for the
Eastern District of Pennsylvania (DuBois, J.) dismissed the §
1983 claim against ADA Smith and the pendent state law claims
against Smith and the DA’s Office. The District Court held that
Smith was entitled to absolute prosecutorial immunity, and that
the Pennsylvania Tort Claims Act, 42 Pa.C.S. § 8541, barred the
state law claims against the DA’s Office. Schneyder then
withdrew her federal claim against the DA’s Office and filed the
present appeal to challenge the District Court’s immunity
holding.2

      In Odd’s case, the District Court for the Eastern District
of Pennsylvania (Shapiro, J.) declined to dismiss the § 1983


       2
          To the extent that Schneyder appeals the dismissal of
her state law claims, we affirm the District Court’s dismissal of
those claims. Schneyder mentions the state law claims only in
a footnote in her opening brief, and consequently, we consider
any appeal regarding those claims to be waived. John Wyeth &
Bro. Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1076 n.6 (3d Cir.
1997).

                               7
claims against ADA Malone and the DA’s Office. The District
Court concluded that after Way was dismissed, “Malone was no
longer acting as an advocate of the state.” Malone filed an
interlocutory appeal to challenge the District Court’s holding
that he was not entitled to absolute prosecutorial immunity. See
In re Montgomery County, 215 F.3d 367, 373-74 (3d Cir. 2000).

                               II.

       In light of Schneyder’s voluntary dismissal of her
remaining federal claim against the DA’s Office, we have
jurisdiction to review the District Court’s final order dismissing
all of Schneyder’s claims and granting Smith prosecutorial
immunity. 28 U.S.C. § 1291. We have jurisdiction over
Malone’s interlocutory appeal of the District Court’s denial of
prosecutorial immunity pursuant to the collateral order doctrine.
Montgomery County, 215 F.3d at 373-74; Kulwicki v. Dawson,
969 F.2d 1454, 1459 (3d Cir. 1992) (citing Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541 (1949)).

       We review de novo the District Court’s Rule 12(b)(6)
dismissal of Schneyder’s complaint based on absolute immunity.
Yarris, 465 F.3d at 134; Kulwicki, 969 F.2d at 1461. Likewise,
our review of the District Court’s denial of Malone’s motion to
dismiss based on prosecutorial immunity is plenary. Giuffre v.
Bissell, 31 F.3d 1241, 1251 (3d Cir. 1994). In both cases, we
apply the same standard as the District Court, accepting as true
the factual allegations in the complaint and drawing all
reasonable inferences in favor of Schneyder and Odd. Yarris,
465 F.3d at 134; Giuffre, 31 F.3d at 1251. We will affirm the
dismissal of Schneyder’s case only if it appears from her

                                8
complaint that she can prove no set of facts that would entitle
her to relief. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).
We will affirm the District Court’s refusal to dismiss Odd’s case
so long as his complaint states a claim upon which relief can be
granted. See F ED. R. C IV. P. 12(b)(6).

        In seeking to dismiss the suits against them, ADAs Smith
and Malone invoke prosecutorial immunity. More than a mere
defense to liability, prosecutorial immunity embodies the “right
not to stand trial,” Montgomery County, 215 F.3d at 373 (citing
Mitchell v. Forsyth, 472 U.S. 511, 525 (1985)), and is properly
raised in a Rule 12(b)(6) motion to dismiss. See, e.g., Kulwicki,
969 F.2d at 1461-62.

        A prosecutor bears the “heavy burden” of establishing
entitlement to absolute immunity. Light v. Haws, 472 F.3d 74,
80-81 (3d Cir. 2007) (quoting Forsyth v. Kleindienst, 599 F.2d
1203, 1212 (3d Cir. 1979)). In light of the Supreme Court’s
“quite sparing” recognition of absolute immunity to § 1983
liability, we begin with the presumption that qualified rather
than absolute immunity is appropriate. Carter v. City of
Philadelphia, 181 F.3d 339, 355 (3d Cir. 1999) (citing Burns v
Reed, 500 U.S. 478, 486-87 (1991)).

       To overcome this presumption, a prosecutor must show
that he or she was functioning as the state’s advocate when
performing the action(s) in question. Yarris, 465 F.3d at 136.
This inquiry focuses on “the nature of the function performed,
not the identity of the actor who performed it.” Light, 472 F.3d
at 78 (quoting Hughes v. Long, 242 F.3d 121, 125 (3d Cir.
2001)). Under this functional approach, a prosecutor enjoys

                               9
absolute immunity for actions performed in a judicial or “quasi-
judicial” capacity. Giuffre, 31 F.3d at 1251 (quoting Imbler v.
Pachtman, 424 U.S. 409, 430 (1976)); Rose v. Bartle, 871 F.2d
331, 346 (3d Cir. 1989). Thus, immunity attaches to actions
“intimately associated with the judicial phases of litigation,” but
not to administrative or investigatory actions unrelated to
initiating and conducting judicial proceedings. Giuffre, 31 F.3d
at 1251 (quoting Imbler, 424 U.S. at 430) (internal quotation
omitted); see also Rose, 871 F.2d at 346 (contrasting the
prosecutor’s “quasi-judicial” role from his
“administrative/investigative” role).

        Thus, the present appeal requires a “meticulous analysis”
of the ADAs’ actions, Light, 472 F.3d at 79, to determine
whether they were “quasi-judicial” and entitled to absolute
immunity, or “administrative or investigatory” and not so
entitled. Giuffre, 31 F.3d at 1251-52; Rose, 871 F.2d at 346.
The fact-intensive nature of this inquiry requires that we begin
by reviewing the circumstances that the Supreme Court has
interpreted in explaining the contours of prosecutorial immunity.

A.     Supreme Court Jurisprudence

       The Supreme Court first acknowledged the absolute
immunity of prosecutors to § 1983 suits in Imbler v. Pachtman,
424 U.S. 409, 420 (1976). Finding a common law tradition of
prosecutorial immunity and strong policy considerations that
supported extending immunity to the § 1983 context, id. at 421,
424, the Court defined the scope of prosecutorial immunity with
reference to the facts of the case. Id. at 430.


                                10
        Deputy District Attorney Richard Pachtman successfully
prosecuted Paul Imbler for felony murder. Id. at 412. After
Imbler’s conviction and sentence, Pachtman discovered new
evidence that corroborated Imbler’s alibi and cast doubt on the
credibility of a key prosecution witness. Id. Pachtman informed
the governor of his discovery, id. at 412, and Imbler obtained a
writ of habeas corpus based primarily on the new evidence. Id.
at 414. After his exoneration and release, Imbler sued, alleging
that Pachtman used false testimony and suppressed material
evidence at Imbler’s murder trial. Id. at 415-16.

        Accepting these allegations as true, the Supreme Court
affirmed the dismissal of Imbler’s complaint, holding that “in
initiating a prosecution and in presenting the State’s case, the
prosecutor is immune from a civil suit for damages under §
1983.” Id. at 431. The Court left open the question whether
absolute immunity would attach to “those aspects of the
prosecutor’s responsibility that cast him in the role of an
administrator or investigative officer rather than that of
advocate.” Id. at 430-31.

       The Court answered this question in Burns v. Reed, 500
U.S. 478, 495-96 (1991). There, police officers suspected Cathy
Burns of shooting her two sons. Id. at 481. Believing that
Burns had multiple personalities, the police asked prosecutor
Reed if they could interrogate Burns under hypnosis. Id. at 482.
Reed approved. Id. Under hypnosis, Burns referred to her sons’
attacker as “Katie,” and also referred to herself by that name.
Id. Once the officers obtained Reed’s assurance that they had
probable cause, they arrested Burns. Id. Shortly thereafter,
Reed appeared at a hearing to obtain a search warrant for

                              11
Burns’s house during which he misled the judge into believing
that Burns had confessed to shooting her sons. Id. 482-83.
Based on this misconception, the judge issued the warrant. Id.
at 483. Before Burns’s trial began, the judge suppressed
Burns’s statements made under hypnosis. Id. As a result, Reed
dropped the charges, and Burns sued Reed. Id.

        Evidencing the fact-based nature of the prosecutorial
immunity inquiry, the Court parsed Reed’s actions into two
categories: (1) appearing as a lawyer for the state in a probable
cause hearing to obtain a search warrant, and (2) providing legal
advice to the police. Id. at 487, 492. As to the former, Reed
enjoyed absolute immunity. Id. at 487. As to the latter,
however, the Court held: “[w]e do not believe . . . that advising
the police in the investigative phase of a criminal case . . .
qualifie[d] [Reed] for absolute immunity.” Id. at 493.
Extending immunity to this activity would eviscerate the rule
that a prosecutor’s administrative and investigatory acts are not
absolutely immune because “[a]lmost any action by a
prosecutor, including his or her direct participation in purely
investigative activity, could be said to be in some way related to
the ultimate decision whether to prosecute.” Id. at 495.

        The Court further justified its decision with a review of
the relevant policy considerations, finding no common law
tradition that would have accorded immunity in this situation, no
risk of vexatious litigation if immunity was withheld, and no
adequate check to prevent abuse by prosecutors for “out-of-
court activities . . . that occur prior to the initiation of a
prosecution.” Id. at 493-96.


                               12
        Following its approach in Reed, the Court in Buckley v.
Fitzsimmons carefully scrutinized prosecutor Fitzsimmons’s
actions in obtaining a murder indictment of Buckley. 509 U.S.
259, 261, 270 (1993). After a third party confessed to the
murder, Buckley sued Fitzsimmons, claiming that Fitzsimmons
fabricated evidence to obtain the indictment and made false
statements about Buckley in a press conference. Id. at 264. The
Court held that Fitzsimmons was not entitled to absolute
immunity for either act. Id. at 275-77. As to the former, the
Court held that at the time Fitzsimmons allegedly fabricated the
evidence, he had no probable cause to arrest Buckley, no
indictment had issued, and no judicial proceedings had begun.
Id. at 275-76. Thus, Fitzsimmons’s actions were purely
investigatory and not entitled to absolute immunity. Id. As to
the latter, the Court noted that at common law, prosecutors were
absolutely immune from defamation liability for in-court
statements but received only qualified immunity for out-of-court
statements. Id. at 277. Accordingly, Fitzsimmons was not
entitled to absolute immunity for his public statements falsely
implicating Buckley. Id.

       Finally, in Kalina v. Fletcher, the Court again parsed the
actions of prosecutor Kalina to decide whether she was entitled
to absolute immunity. 522 U.S. 118, 120 (1997). Kalina filed
three documents to initiate a burglary prosecution of Fletcher,
who allegedly stole computer equipment from a school. Id. at
120-21. The first two documents — an information and a
motion for an arrest warrant — were unsworn. Id. at 121. The
third — a “Certification for Determination of Probable Cause”
— was a sworn document containing two false statements. Id.
As Fletcher was arrested and jailed before the charges against

                               13
him were dismissed, he sued Kalina based on her misstatements
in the Certification, and Kalina asserted absolute immunity. Id.
 The Court held that Kalina’s acts of (1) filing the information
and (2) filing the motion for an arrest warrant were protected by
absolute immunity, id. at 129, but her act of (3) “personally
attesting to the truth of the averment” in the Certification was
non-prosecutorial because it could have been performed by any
competent witness. Id. at 129-30.

        It is tempting to derive bright-line rules from the
aforementioned cases. Cf. E RWIN C HEMERINSKY, F EDERAL
J URISDICTION 525-26 (4th ed. 2003) (recognizing the uncertainty
surrounding the precise scope of prosecutorial immunity but
suggesting that in-court activities are generally protected while
out-of-court activities, and activities traditionally performed by
the police, are not); see also Buckley, 509 U.S. at 275-76
(indicating that a prosecutor’s post-indictment actions are
generally protected by absolute immunity while pre-indictment
actions are not). To preserve the fact-based nature of the
inquiry, however, the Supreme Court has cautioned against such
categorical reasoning. See, e.g., Imbler, 424 U.S. at 431 n.33
(prosecutorial immunity extends to “actions preliminary to the
initiation of a prosecution and actions apart from the
courtroom,” but “[a]t some point, and with respect to some
decisions, the prosecutor no doubt functions as an administrator”
and loses absolute immunity).

B.     Third Circuit Jurisprudence

      Following the Supreme Court’s guidance, our
prosecutorial immunity analysis focuses on the unique facts of

                               14
each case and requires careful dissection of the prosecutor’s
actions. See, e.g., Yarris, 465 F.3d at 136; Kulwicki, 969 F.2d
at 1463. We have rejected bright-line rules that would treat the
timing of the prosecutor’s action (e.g. pre- or post- indictment),
or its location (i.e. in- or out-of-court), as dispositive. See Rose,
871 F.2d at 346; Kulwicki, 969 F.2d at 1463. We have found
these considerations relevant, however, to the extent that they
bear upon the nature of the function the prosecutor is
performing. See, e.g., Yarris, 465 F.3d at 138-39; Kulwicki, 969
F.2d at 1467.

        In Yarris, we held that where a prosecutor’s role as
advocate has not yet begun, or where it has concluded, absolute
immunity does not attach. 465 F.3d at 137 (quoting Spurlock v.
Thompson, 330 F.3d 791, 799 (6th Cir. 2003)). During different
stages of Yarris’s case, prosecutors allegedly withheld and
destroyed exculpatory evidence, fabricated a false confession,
and obtained a false statement from a jailhouse informant. Id.
at 136. Because we could not discern from Yarris’s complaint
“whether the fabrication of Yarris’s confession occurred during
the preliminary investigation of an unsolved crime” or “after the
[prosecutors] decided to indict Yarris and had begun working as
the state’s advocates,” we declined to extend absolute immunity
to this act. Id. at 138-39. Similarly, we refused to extend
absolute immunity to the prosecutors’ act of withholding
exculpatory evidence after Yarris’s conviction and sentence
because we had no proof that the prosecutors remained involved
as the state’s advocates in “adversarial post-conviction
proceedings.” Id. at 137. Absent such proof, we concluded, the
prosecutors were “acting merely as . . . custodian[s] of
evidence” and could claim only qualified immunity. Id. at 138.

                                 15
By contrast, with respect to the false statement prosecutors
obtained from the jailhouse informant, we held that because
“Yarris had already been charged,” the prosecutors were “acting
as advocates rather than investigators” and were entitled to
absolute immunity. Id. at 139. Although by no means
dispositive, Yarris teaches that the period during which
prosecutors are most likely functioning in a “quasi-judicial”
capacity is the time between indictment and dismissal, acquittal,
or conviction.3

      We have also recognized that, presumably by virtue of
their egregiousness, some acts fall wholly outside the
prosecutorial role no matter when or where they are committed.
See Kulwicki, 969 F.2d at 1463 (citing Rose, 871 F.2d at 346).
For example, prosecutors never enjoy absolute immunity for


       3
           We again caution that this is not a bright-line rule.
Depending on the circumstances of each case, some pre-
indictment acts — like obtaining, reviewing, and evaluating
evidence in preparation for prosecution — and some post-trial
acts — like post-conviction appeals — may be advocative and
entitle a prosecutor to absolute immunity. Kulwicki, 969 F.2d at
1465; Yarris, 465 F.3d at 137; compare Schrob v. Catterson,
948 F.2d 1402, 1411 (3d Cir. 1991) (“A prosecutor’s alleged
failure to properly investigate before initiating a prosecution is
also conduct within the scope of absolute immunity.”), with
Buckley, 509 U.S. at 276 n.7 (In some situations, in “obtaining,
reviewing, and evaluating” the evidence, “the prosecutor no
doubt functions as an administrator rather than as an officer of
the court.”).

                               16
deliberately destroying exculpatory evidence. See Yarris, 465
F.3d at 136-37.

        Likewise, some acts are so far removed from the “judicial
phases of litigation” that we do not hesitate to label them
administrative. In several cases, for example, we have
considered the immunity due to prosecutors who mishandled or
improperly withheld property confiscated from criminal
defendants. In Giuffre, we held that where the prosecutor
facilitated the sale of plaintiff’s property, which plaintiff
forfeited as part of an immunity from prosecution agreement, he
performed a strictly administrative function and was not entitled
to absolute immunity. 31 F.3d at 1253. Similarly, in Schrob, we
held that a prosecutor’s “management of and negotiations
concerning return of the [seized] property [was] not directly
related to the judicial process.” 948 F.2d 1402, 1419-20 (3d Cir.
1991). Because the prosecutor was instead “acting in an
administrative role,” we declined to extend absolute immunity.
Id.

        Perhaps most pertinent to the instant appeals, in Reitz v.
County of Bucks, we considered the immunity due to a
prosecutor who delayed in returning seized property in violation
of a court order. 125 F.3d 139, 141 (3d Cir. 1997). In Reitz, the
prosecuting authority seized property purportedly belonging to
the defendant who was charged with possessing and delivering
marijuana. Id. The seizure was conducted pursuant to a state
law that authorized the appropriation of property that either
facilitated a criminal act or was obtained with the proceeds of a
criminal act. Id.


                               17
        The defendant’s relatives obtained a court order for the
return of certain property that did not belong to the defendant.
Id. at 141-42. Despite the order, the prosecuting authority failed
to return the property for nearly a year. Id. We held that neither
absolute nor qualified immunity protected the prosecutor from
liability for this delay because “the prosecutor [had] the
obligation to duly comply with a judicial order” and to “avoid
violating the rights of others.” Id. at 147.

                               III.

       With the foregoing principles in mind, we turn to the
merits of the instant appeals.

A.     Nicole Schneyder

       We address first the more difficult case of Nicole
Schneyder. We begin by carefully defining the act (or rather
omission) that gave rise to Schneyder’s suit. See, e.g., Yarris,
465 F.3d at 136; Kulwicki, 969 F.2d at 1463; Schrob, 948 F.2d
at 1409.

        Schneyder acknowledges that ADA Smith was acting in
her prosecutorial capacity when she secured the material witness
warrant for Schneyder’s arrest. See Betts v. Richard, 726 F.2d
79, 81 (2d Cir. 1981); Daniels v. Keiser, 586 F.2d 64, 68 (7th
Cir. 1978). Schneyder alleges, however, that Smith’s failure to
notify Judge Means (per his order and per local custom) that the
Overby case had been continued was an administrative
oversight. Once Smith performed this clerical duty, Schneyder


                               18
concedes, Smith was free to advocate any position she wanted
with regard to the propriety of Schneyder’s release.

        Smith, on the other hand, characterizes her act as failing
“to seek Ms. Schneyder’s release from custody when the Overby
case was continued.” This “act of prosecutorial discretion,”
Smith argues, cannot be carved up into its advocative and
administrative components. As Smith’s counsel contended at
oral argument, even a plainly prosecutorial act like filing a bill
of information involves predicate administrative acts that any
clerk could perform, such as printing and binding the
documents. In other words, the fact that some administrative
acts necessarily accompany nearly all prosecutorial acts should
not strip prosecutors of immunity.

        When viewed from Smith’s suggested level of generality,
her act might reasonably be characterized as an out-of-court
“effort to control the presentation of [a] witness’ testimony,” an
act the Supreme Court viewed as advocative on the facts of at
least one case. See Imbler, 424 U.S. at 431 n.32. In Imbler,
prosecutor Pachtman asked the police to refrain from
questioning his primary identification witness about an unrelated
bad-check charge until the witness testified against Imbler. Id.
at 411, 431 n.32. Imbler claimed this request was “investigative
activity because it was a direction to police officers engaged in
the investigation of a crime.” Id. at 431 n.32. The Court
disagreed and concluded that Pachtman was performing “a task
fairly within his function as an advocate.” Id.

       We do not believe this parenthetical conclusion was
intended as a categorical rule. As we noted previously, the

                               19
Supreme Court has repeatedly instructed that immunity
determinations cannot be made without reference to the unique
facts of each case, and we find the facts of Schneyder’s case
distinguishable.

        Here, ADA Smith’s act occurred during a prolonged and
clearly delimited period of judicial inactivity, whereas
Pachtman’s request that the police refrain from questioning his
witness occurred “during a courtroom recess” from the trial in
which the witness was to testify. Id. Pachtman’s efforts to
control the presentation of his witness’s testimony were thus
more “intimately associated with the judicial phase of the
criminal process” than Smith’s. Id. at 430. In addition, Smith
disobeyed the explicit instructions of the court when she failed
to notify Judge Means that the proceedings in which Schneyder
was to testify had been delayed, whereas Pachtman was under
no court-imposed obligation to permit the police to question his
witness. As a result, Pachtman’s act involved more discretion
than Smith’s. Thus, even if we viewed Smith’s act at her
suggested level of generality (which, as we explain below,
would be inappropriate), we would find her act less worthy of
absolute immunity than Pachtman’s.

        The foregoing discussion is largely academic because for
the distinction between advocative and administrative acts to be
useful, we must narrowly define the act at issue. After all,
“[a]lmost any action by a prosecutor, including his or her direct
participation in purely investigative activity, could be said to be
in some way related to the ultimate decision whether to
prosecute.” Burns, 500 U.S. at 495. Similarly, almost any
action by a prosecutor, including the dispatch of purely

                                20
administrative tasks, can be said to be in some way related to
more central prosecutorial functions. See Guzman-Rivera v.
Rivera-Cruz, 55 F.3d 26, 29 (1st Cir. 1995) (“The prosecutorial
nature of an act does not spread backwards like an inkblot,
immunizing everything it touches.”). It was Smith’s burden to
establish her entitlement to absolute immunity, Light, 472 F.3d
at 80-81, and in light of our preference for a “meticulous
analysis” of the prosecutor’s actions, id. at 79, we believe
Schneyder’s characterization of Smith’s act is more appropriate.
Indeed, we find that the distinction between informing the court
about the status of a detained witness (Schneyder’s
characterization 4 ) and affirmatively seeking that witness’s
release (Smith’s characterization 5 ) is a principled one.




       4
          In her briefs, Schneyder characterizes Smith’s act as,
inter alia, failing to: “notify authorities that plaintiff . . .
remained in custody,” “notify authorities that [Smith] ha[d] a
material witness in custody,” “notify authorities that plaintiff
would no longer be needed as a witness,” and “notify the
authorities that the underlying criminal case had been continued
and that plaintiff would not be needed as a witness for another
four months.”
       5
         In her brief, Smith characterizes her act as, inter alia,
neglecting to: “secure Ms. Schneyder’s immediate release from
custody,” “seek Ms. Schneyder’s release from custody,”
“petition[] for the withdrawal of [the material witness] warrant,”
and “advocat[e] for the release of [a] witness[].”

                               21
        Having adopted Schneyder’s characterization, it follows
that Smith is not entitled to absolute prosecutorial immunity.6
We find that Smith’s obligation to inform Judge Means that
Overby had been continued — and that Schneyder remained
incarcerated — was primarily administrative, especially in light
of Judge Means’s explicit order that he be advised of any delay
in the Overby proceedings. Smith’s duty to advise Judge Means
of these facts required no advocacy on her part.

       Our case law bolsters this conclusion. In Yarris, for
example, we considered the timing of the prosecutor’s actions
to be relevant in determining their nature, observing that pre-
indictment and post-conviction actions are more likely
administrative than advocative. See Yarris, 465 F.3d at 137.
Here, although an indictment had issued, the Overby trial had
been continued from February 2, 2005, to May 25, 2005, a
period of nearly four months. Smith’s failure to act occurred
during this period of judicial inactivity. Although the Overby
trial was not finally terminated, it was suspended for a clearly
delimited period of time, casting serious doubt on Smith’s
claims that her actions during this period remained “intimately
associated with the judicial phase” of the litigation. Imbler, 424
U.S. at 430.

      Additional facts alleged in Schneyder’s complaint further
support our conclusion that Smith’s omission was not “quasi-


       6
        We leave to the District Court on remand the question
whether Smith is entitled to qualified immunity. See Imbler,
424 U.S. at 430-31; Carter, 181 F.3d at 356.

                               22
judicial.” First, Schneyder alleges that Judge Means twice
instructed Smith to notify him if the Overby case was continued
so that he could release Schneyder. We can imagine few
circumstances under which we would consider the act of
disobeying a court order or directive to be advocative, and we
are loath to grant a prosecutor absolute immunity for such
disobedience. See Reitz, 125 F.3d at 147; White by Swafford v.
Gerbitz, 860 F.2d 661, 665 n.4 (6th Cir. 1988). But see Webster
v. Gibson, 913 F.2d 510, 513-14 (8th Cir. 1990); Ybarra v.
Reno, 723 F.2d 675, 679 (9th Cir. 1984) (prosecutor’s
dereliction of a duty that “arise[s] from his role as an officer of
the court . . . cannot be construed as only administrative or
investigative”).

       Second, Schneyder alleges that it was the custom and
practice in Philadelphia County to assign sole responsibility for
tracking and monitoring detained witnesses to the District
Attorney’s Office and to individual prosecutors. This custom is
consistent with federal criminal practice:

       Supervising Detention Pending Trial. (1) In
       general. To eliminate unnecessary detention, the
       court must supervise the detention within the
       district . . . of any persons held as material
       witnesses. (2) Reports. An attorney for the
       government must report biweekly to the court,
       listing each material witness held in custody for
       more than 10 days pending indictment,
       arraignment, or trial. For each material witness
       listed in the report, an attorney for the government
       must state why the witness should not be released

                                23
       with or without a deposition being taken under
       Rule 15(a).

F ED. R. C RIM. P. 46(h). This rule, like Judge Means’s order,
obligates the prosecutor to keep the court informed of the status
of detained material witnesses. The gist of the provision — the
biweekly reporting requirement — is plainly administrative.
The prosecutor is required to “list” all detained witnesses, not to
advocate any particular action with regard to those witnesses.7

        Moreover, Rule 46(h), which is intended to “eliminate
unnecessary detention,” suggests that 10 days is the upper limit
for holding material witnesses without notice to the court and a
written justification for “why the witness should not be
released.” Here, Smith was held for over 50 days without notice
to the court or a justification of any kind from Smith.

       In short, it is a judicial function — the function of the
courts — not a prosecutorial function, to determine whom to
incarcerate and for what length of time. On the particular facts
of this case, we conclude that once Overby was continued,


       7
         The second part of the provision, of course, is plainly
advocative, requiring prosecutors who wish to keep witnesses
detained to “state why the witness[es] should not be released.”
Here, as discussed, Schneyder does not contend that Smith was
obligated to undertake this sort of advocacy. She argues only
that Smith was obligated to inform Judge Means that Overby
had been continued.


                                24
Smith’s failure to notify the court about Schneyder’s custodial
status was an administrative oversight. Accordingly, we hold
that Smith was not entitled to absolute prosecutorial immunity.

B.     Korvel Odd

       We turn now to the easier case of Korvel Odd. As with
Nicole Schneyder, we begin by defining the act in question.
See, e.g., Yarris, 465 F.3d at 136; Kulwicki, 969 F.2d at 1463;
Schrob, 948 F.2d at 1409. According to Odd, ADA Malone
failed to notify the relevant authorities that Odd remained
incarcerated despite the dismissal of the Way case in which Odd
was to testify.8 Malone, by contrast, characterizes his act as
“omitting to see to the release” of Odd after the Way prosecution
was dismissed. For the reasons discussed previously, we accept
Odd’s characterization of Malone’s act.

        Odd’s case presents a relatively clear example of a
situation in which the prosecutor’s role as an advocate for the
state had concluded. Yarris, 465 F.3d at 137; see also Ybarra v.
Reno, 723 F.2d 675, 679 (9th Cir. 1984) (“In acting either to
preserve or release evidence, the primary [immunity]


       8
          Odd also faults Malone for “failing to take any steps to
have plaintiff released from custody” and neglecting to “take the
necessary steps to put into motion the process to release
plaintiff.” The record shows that the only step necessary to
effectuate Odd’s release was for Malone to notify Judge
Neifield of his incarceration. As we explain, this step required
no advocacy on Malone’s part.

                               25
consideration, viewed objectively, is whether the prosecutor
needs the evidence to prosecute.”) (emphasis added). Whereas
the case in which Schneyder was to testify was merely
continued, the case in which Odd was to testify was dismissed.
        As the Court of Appeals for the Second Circuit has
stated:

       Keeping a person in state custody after the
       termination of all charges against him has nothing
       to do with conducting a prosecution for the state.
       Since the handling of a prisoner after the
       complete conclusion of all criminal charges is not
       a prosecutorial task but rather an administrative
       one, the district attorney defendants are entitled
       only to the protection of qualified immunity for
       any involvement in [plaintiff’s] seemingly
       delayed transfer back into federal custody after
       the final dismissal of the state charges against
       him.

Pinaud v. County of Suffolk, 52 F.3d 1139, 1151 (2d Cir. 1995)
(emphasis in original). Because we agree with the Second
Circuit’s reasoning, it necessarily follows that keeping a third-
party witness in state custody after the termination of the
proceeding in which he was to testify has nothing to do with
conducting a prosecution for the state. See Gerbitz, 860 F.2d at
665 n.4 (stating in dicta that neither absolute nor qualified
immunity would protect a prosecutor who “failed to act timely
in securing [a material witness’s] release after being ordered by
the court” to do so). Instead, this is an administrative oversight


                               26
by the prosecutor that does not warrant absolute immunity. See
Imbler, 424 U.S. at 430-31.

        An analogy to our property seizure cases is illustrative.
We have concluded that where a court determined that seized
property was not related to the criminal defendant’s drug
activities, the prosecutor’s delay in returning that property in
violation of the court’s order was “incomprehensible,” so the
prosecutor was not entitled to absolute immunity. Reitz, 125
F.3d at 147. Here, when Judge Neifield dismissed the Way case,
Odd’s testimony, like the property in Reitz, was no longer
relevant to an ongoing prosecution. Nevertheless, in derogation
of the terms of the “judge-only” warrant, ADA Malone failed to
inform Judge Neifield that Odd was detained. If a prosecutor is
not entitled to absolute immunity for improperly retaining a
chattel, a fortiori he is not entitled to absolute immunity for
improperly retaining a person.

        The fact that the Way prosecution was terminated is also
critical because it undermines Malone’s suggestion that he
would have had to engage in advocacy to secure Odd’s release.
Indeed, once Judge Neifield discovered that Odd remained
incarcerated, she was “furious” and immediately released him
without hearing any “advocacy” from anyone. The only act
necessary to secure Odd’s release was notifying Judge Neifield
that he remained in jail. Malone’s failure to perform this simple
administrative act caused Odd’s unnecessary detention.

        In short, the principal distinction between this case and
Nicole Schneyder’s is that here, the case in which Odd was to
testify was terminated instead of continued. As we have

                               27
explained, this distinction cuts in Odd’s favor. Accordingly,
having concluded that ADA Smith was not entitled to absolute
prosecutorial immunity, we readily conclude that ADA Malone
was not entitled to absolute prosecutorial immunity.

                               IV.

       In addition to the administrative nature of the
prosecutors’ actions, we note that the policy considerations
underlying prosecutorial immunity counsel against recognizing
absolute immunity in these cases.

        To decide whether to extend absolute immunity under
§ 1983, the Supreme Court considers whether: (1) there is a
common law tradition of according immunity in similar
situations; (2) denying immunity would subject the prosecutor
to the chilling influence of vexatious lawsuits; and (3) there
exist adequate checks on prosecutorial abuse other than
individual suits against the prosecutor. See Imbler, 424 U.S. at
421-29; Burns, 500 U.S. at 492-96; Kulwicki, 969 F.2d at 1463.

       Here, neither the District Court nor the parties identify a
common law tradition of extending absolute immunity to a
prosecutor for failing to notify the court of the status of a
detained witness. Indeed, as Justice White observed, “[t]here
was no absolute immunity at common law for prosecutors other
than absolute immunity from suits for malicious prosecution and
defamation.” Imbler, 424 U.S. at 441 (White, J., concurring).
Plaintiffs’ complaints cannot be fairly analogized to either of
these actions because Plaintiffs were neither prosecuted nor
defamed. Both were unindicted third-party witnesses.

                               28
       Second, it is unlikely that denying absolute immunity in
these cases would interfere with the prosecutors’ independent
decisionmaking by exposing them to vexatious litigation.
Accepting Plaintiffs’ allegations as true, as we must, the ADAs
had no decisions to make. ADA Smith was required by court
order (and perhaps by local custom) to notify Judge Means that
Overby was continued, and ADA Malone was required by the
judge-only warrant (and perhaps by local custom) to notify
Judge Neifield that Odd had been detained. After the
prosecutors performed these ministerial tasks, it was the judges’
decision whether to release Plaintiffs.

        We also note that these cases differ significantly from
most cases involving prosecutorial immunity. Here, unindicted
third-party witnesses, not criminal defendants, are suing the
ADAs. Although one can imagine the flood of litigation that
would ensue if every defendant who thought he had been
wronged by a prosecutor could sue, a similar result is not likely
to follow from permitting detained witnesses to sue prosecutors.
Furthermore, denying the ADAs absolute immunity does not
mean they are without protection from vexatious suits. Indeed,
they may still be entitled to qualified immunity if their actions
were objectively reasonable in light of the constitutional rights
affected. Carter, 181 F.3d at 356.

       Finally, we observe that by virtue of their status as third-
party witnesses, Plaintiffs are not entitled to the protections
available to criminal defendants, including the appellate process.
Indeed, the failure of the ADAs to notify anyone of Plaintiffs’
status assured that not even the warrant-issuing judges would
review the propriety of their continued detention, thus short-

                                29
circuiting the “crucible of the judicial process.” Burns, 500 U.S.
at 496. These policy considerations further support our holding
that neither Smith nor Malone is entitled to absolute immunity.

                               V.

       In sum, we conclude that both Smith and Malone failed
to perform a fundamentally administrative task, viz., notifying
the warrant-issuing judges that Schneyder and Odd remained
incarcerated after it was clear that their testimony would not be
needed for quite some time, if ever. We also find that the
policies underlying the recognition of prosecutorial immunity do
not apply with the same force in these cases because the
aggrieved persons are unindicted third-party witnesses rather
than criminal defendants.

       For the foregoing reasons, we hold that both Schneyder
and Odd have stated § 1983 claims against ADAs Smith and
Malone. Accordingly, we reverse the District Court’s dismissal
of Schneyder’s claim against Smith, affirm the District Court’s
denial of Malone’s motion to dismiss Odd’s claim, and remand
both matters for further proceedings consistent with this
opinion.




                               30
