                                                                               F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                              March 24, 2006
                                   TENTH CIRCUIT                           Elisabeth A. Shumaker
                                                                               Clerk of Court

 MICHAEL ANDRE CRUMPTON,

          Plaintiff-Appellant
 v.                                                          No. 05-1334
 STEPHANI PODOLAK,                                  (D.C. No. 05-cv-00653-ZLW)
                                                           (D. Colorado)
          Defendant-Appellee.




                                ORDER AND JUDGMENT*


Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.



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

unanimously that oral argument would not materially assist in 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.

      Michael Andre Crumpton filed this action pursuant to Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that


      *
         This order and judgment is not binding precedent, except under the doctrines of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.
Stephani Podolak, the assistant United States Attorney who prosecuted him in a prior

criminal proceeding, has continued to retain his seized personal property without due

process of law.1 The district court dismissed Crumpton’s complaint, sua sponte,

determining that Crumpton’s damage claims were legally frivolous. See 28 U.S.C. §

1915(e)(2)(B)(i).2 Specifically, the district court concluded that Podolak was entitled to

absolute immunity because Crumpton’s allegations concerned actions that were intimately

associated with Podolak’s prosecutorial duties. The district court also denied Crumpton’s

motion to reconsider that decision pursuant to Fed. R. Civ. P. 59(e). We exercise

jurisdiction pursuant to 28 U.S.C. § 1291, reverse the district court’s decision, and

remand for further proceedings.




       1
         We note that Crumpton has filed three other cases in the United States District
Court for the District of Colorado alleging the deprivation of his personal property
without due process of law. First, on February 14, 2005, Crumpton filed suit against the
United States, the United States Attorney’s Office, the United States Department of
Justice, and the Federal Bureau of Investigation. Case No. 1:05-cv-00365-MSK-PAC.
On December 5, 2005, the district court dismissed the case without prejudice after
Crumpton moved to dismiss the action pursuant to Fed. R. Civ. P. 41(a)(1)(i). Second, on
November 18, 2005, Crumpton filed a § 1983 action against police officer Mark Finnin,
the City of Aurora, Colorado, and Arapahoe County, Colorado. Case No. 1:05-cv-02343-
BNB. That case is still pending before the district court. Lastly, on December 16, 2005,
Crumpton filed a Bivens action against several FBI agents. Case No. 1:05-cv-02555-
BNB. That case is also pending before the district court.
       2
        The United States Attorney’s Office did not enter an appearance in the district
court because the district court dismissed Crumpton’s complaint shortly after it was filed.
Further, the United States Attorney’s Office did not enter an appearance or file a brief in
this appeal.

                                             -2-
                                             I.

       On November 21, 1996, in the United States District Court for the District of

Colorado, Michael Crumpton was charged with several drug-trafficking offenses. On

June 23, 2000, Crumpton pleaded guilty to one count of conspiring to distribute cocaine.

On October 18 of that year, Crumpton was sentenced to 180 months of imprisonment.

       On November 21, 2000, Crumpton filed a motion in his criminal case for the

return of property pursuant to Fed. R. Crim. P. 41(e). Crumpton requested several items,

including a laptop computer, two electronic scanners, a book entitled The Anarchist

Cookbook, and a cellular telephone handbook. The government responded that

Crumpton sought the return of items which were part and parcel of his narcotic crimes,

and as such, would not be returned. Additionally, the government stated that one of

Crumpton’s co-defendants still had an appeal pending, and that no evidence would be

returned until that appeal was final. On February 16, 2001, the presiding district judge

denied Crumpton’s motion in a short written order, concluding that the seized property

was evidence of narcotic crimes for which Crumpton was convicted, and that such

evidence must be preserved pending appeals in the case.

       On April 8, 2005, Crumpton filed this Bivens action against Stephani Podolak, the

lead assistant United States Attorney in his criminal case. Crumpton alleged that in

September and October 1996, FBI agents and state police officers–acting under the FBI’s

direction and control–conducted a search of his residence, stash house, and vehicle.


                                            -3-
Crumpton claimed that the law enforcement officers removed several items of personal

property from these locations. Crumpton stated that Podolak subsequently retained

possession of his personal property and displayed some of the items during the course of

his suppression and pretrial hearings. Crumpton asserted that, since that time, Podolak

has failed to initiate forfeiture proceedings concerning his personal property, and thus has

deprived him of his property without due process of law. Crumpton conceded that several

of the seized items were subject to forfeiture, including contraband, plastic baggies, and

other drug paraphernalia, but he alleged that several items were not connected to the

crimes he was charged with or convicted of. Rather, he asserted that several items had no

evidentiary value and were either part of his registered business or related to his

entrepreneurial interests.3

                                             II.

       We normally review for abuse of discretion a district court’s determination that a

complaint is frivolous pursuant to § 1915(e)(2)(B)(i). Conkle v. Potter, 352 F.3d 1333,

1335 n.4 (10th Cir. 2003). But where a district court’s decision rests on an issue of law,

that decision will be reviewed de novo. Id. (citing Skaggs v. Otis Elevator Co., 164 F.3d

511, 514 (10th Cir. 1998)); see Perez v. Ellington, 421 F.3d 1128, 1133 (10th Cir. 2005)


       3
         Crumpton’s alleged list of personal property includes: a laptop computer; a
frequency counter; two handheld scanners; a wall safe; tool sets; The Anarchist
Cookbook; a notebook of personal phone numbers; a cellular modification handbook; two
bullet proof vests; two handguns; a backpack; a watch; a cellular telephone; a wallet;
shoes; and “various records, documents and papers.”

                                             -4-
(stating that we review absolute immunity determinations de novo) (citation omitted). “In

determining whether dismissal is proper, we must accept the allegations of the complaint

as true and we must construe those allegations, and any reasonable inferences that might

be drawn from them, in the light most favorable to the plaintiff.” Perkins v. Kansas Dep’t

of Corrs., 165 F.3d 803, 806 (10th Cir. 1999) (citation omitted). “Further, we must

liberally construe the allegations of a pro se complaint.” Id.

       It is well established that prosecutors are absolutely immune from suit for activities

“intimately associated with the judicial phase of the criminal process,” such as initiating

and pursuing a criminal prosecution. Imbler v. Pachtman, 424 U.S. 409, 430 (1976).

Imbler and its progeny distinguish between “the prosecutor’s role as advocate . . . , which

demands absolute immunity,” and the prosecutor’s performance of investigative and

administrative functions, which “warrants only qualified immunity.” Hunt v. Bennett, 17

F.3d 1263, 1267 (10th Cir. 1994).

       Crumpton characterizes Podolak’s purported wrongdoing–the retention of his

seized personal property without due process of law–as inherently administrative in

nature. He claims that Podolak’s conduct transpired outside the judicial process, i.e., after

the criminal case against him concluded. Our decision in Coleman v. Turpen, 697 F.2d

1341 (10th Cir. 1982), is instructive on this matter.

       In Coleman, the plaintiff, who was convicted of murder and sentenced to death,

alleged that a sheriff, a state prosecutor, and an automobile wrecking company deprived


                                             -5-
him of property that was seized in his arrest without due process of law. Specifically, the

plaintiff sought the return of $210 in cash, a camper, and a box of tools. Id. at 1343. As a

threshold matter, we concluded that the plaintiff had a cause of action under § 1983 if he

was deprived of his property through state action without due process of law, and that the

defendants could be held liable in damages unless they were protected by immunity. Id.

       Relevant to Crumpton’s claims, we held in Coleman that the prosecutor was

entitled to absolute immunity for his role in retaining the cash pending the plaintiff’s

criminal appeals because such conduct was related to the prosecutor’s presentation of the

state’s case. Id. at 1344; see Parkinson v. Cozzolino, 238 F.3d 145, 153 (2d Cir. 2001)

(holding that “absolute immunity shields prosecutors from liability for the retention of

evidence after conviction while a direct appeal is pending”); Thompson v. Walbran, 990

F.2d 403, 404 (8th Cir. 1993) (concluding that the prosecutor was entitled to absolute

immunity for retaining the defendant’s property because the evidence would be needed at

a new trial if the defendant succeeded on direct appeal or his § 2255 petition). We also

concluded that the prosecutor’s participation in the illegal sale of seized property entitled

the prosecutor only to qualified immunity.4 Specifically, we determined that in managing

the post-trial disposition of the camper and tools, which were not used as evidence and

which the state did not intend to keep, the prosecutor acted as an administrator. Id. at



       4
         Crumpton does not allege that Podolak has attempted to sell or otherwise dispose
of his seized personal property.

                                             -6-
1346; see Giuffre v. Bissell, 31 F.3d 1241, 1253 (3d Cir. 1994) (determining that the

prosecutor was not entitled to absolute immunity because his actions in the alleged

improper sale of seized property involved administrative duties).

       Podolak’s alleged retention of Crumpton’s seized property throughout Crumpton’s

criminal case and any subsequent appeals constitutes prosecutorial conduct and entitles

Podolak to absolute immunity. In those circumstances, the prosecutor acts as an

advocate, carrying out the government’s interest in preserving evidence until a criminal

defendant has exhausted his appeals. Coleman, 697 F.2d at 1344. But the issue here is

whether Podolak is entitled to absolute immunity for her alleged retention of Crumpton’s

property without due process of law after the conclusion of Crumpton’s criminal case

(emphasis added).5




       5
          Indeed, it appears that Crumpton has even exhausted his post-conviction appeals.
On October 9, 2001, Crumpton filed a pro se petition pursuant to 28 U.S.C. § 2255 in his
original criminal case. The district court denied Crumpton’s petition and his request for a
certificate of appealability (COA). On appeal, we denied Crumpton’s request for a COA,
as well as his request to convert his § 2255 petition into a direct appeal. United States v.
Crumpton, No. 02-1339, 2003 WL 1383555 (10th Cir. Mar. 20, 2003). The Supreme
Court denied certiorari on November 3, 2003. Crumpton v. United States, No. 03-6686,
540 U.S. 998 (2003). On November 26, 2004, Crumpton filed a motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On December 9, 2004, the
district court transferred the § 2255 petition to this court. On February 1, 2005, we
denied Crumpton’s motion for permission to file a second or successive 28 U.S.C. § 2255
petition. Crumpton v. United States, No. 04-1535 (10th Cir. Feb. 1, 2005). Finally, on
February 8, 2006, we again denied Crumpton’s petition for permission to file a second or
successive 28 U.S.C. § 2255 to challenge the sentence imposed by the district court in
2000. Crumpton v. United States, No. 06-1006 (10th Cir. Feb. 8, 2006).

                                            -7-
       Podolak may be entitled to qualified immunity for her role, if any, in regards to the

management and retention of Crumpton’s personal property after the conclusion of his

criminal appeals. See Reitz v. County of Bucks, 125 F.3d 139, 147 (3d Cir. 1997)

(stating that the prosecutor was entitled to qualified immunity concerning conduct in the

management and retention of the defendants’ property after trial, which included

“conduct in delaying the return of the seized property”); Morris v. Jackson, 353 F. Supp.

2d 1199, 1202 (D. Ala. 2005) (concluding that qualified immunity, not absolute

immunity, applied to the prosecutor’s continued retention of property after the grand

jury’s failure to indict); Roderick v. City of Gulfport, 144 F. Supp. 2d 622, 636-37 (S.D.

Miss. 2000) (determining that the prosecutor was not entitled to absolute immunity with

respect to her role in retaining property following the final conclusion of the defendant’s

criminal case). After a criminal prosecution has reached its final conclusion, the

government’s interest in seized property dissipates, along with the prosecutor’s role as an

advocate. See Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1490 (10th Cir. 1991)

(explaining that “the more distant a function is from the judicial process and the initiation

and presentation of the state’s case, the less likely it is that absolutely immunity will

attach”) (citation omitted). Where applicable, qualified immunity provides sufficient

protection from liability to prosecutors managing and retaining a criminal defendant’s

seized property after the criminal case, appellate and post-conviction review are

completed. Coleman, 697 F.2d at 1346-47; Schrob v. Catterson, 948 F.2d 1402, 1419 (3d


                                              -8-
Cir. 1991). And to hold otherwise “would allow the government to seize [and continue to

retain] property . . . without accountability.” Schrob, 948 F.2d at 1420.

       Crumpton alleges that Podolak has continued to retain his seized personal property

without initiating forfeiture proceedings. He contends that he lawfully owned and

possessed all the property retained by Podolak, with the exception of contraband and

other drug paraphernalia. He also claims that his requested property was not relevant to

the crimes he was charged with or convicted of, or used as evidence against him.

Accepting these allegations as true, as we must, Crumpton has alleged conduct outside of

Podolak’s role as advocate. We decline to consider whether Podolak is entitled to

qualified immunity, and abide by the general rule that qualified immunity must be

considered in the first instance by the district court. Lowe v. Town of Fairland, 143 F.3d

1378, 1381 (10th Cir. 1998); Cannon v. Denver, 998 F.2d 867, 876 (10th Cir. 1993).6

       In summary, Crumpton’s allegations are sufficient to avoid sua sponte dismissal

under § 1915(e)(2)(B)(i). Again, we offer no opinion on the merits of a qualified

immunity defense, or any other grounds which may subject Crumpton’s claims against

Podolak to dismissal. We also do not foreclose the possibility that Podolak could be



       6
         We note that the district court’s order denying Crumpton’s motion to reconsider
stated that Podolak was entitled to qualified immunity, as opposed to absolute immunity
which was the sole basis for the court’s initial ruling. Whether this reference to qualified
immunity was a mistake or not, we refuse to consider the reference to qualified immunity
in the order denying reconsideration as an adjudication of the qualified immunity issue on
its merits.

                                            -9-
entitled to absolute immunity if it was shown that the retention of Crumpton’s personal

property was necessary for her role as advocate, such as the preservation of evidence in

the criminal case of one of Crumpton’s co-defendants.

       Accordingly, we REVERSE the district court’s dismissal of Crumpton’s complaint

and REMAND for further proceedings consistent with this opinion. Crumpton’s motion

to supplement his argument on appeal is GRANTED. Crumpton’s motion to amend his

complaint on appeal is DENIED, but Crumpton may seek to amend his complaint before

the district court.

                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Circuit Judge




                                           -10-
