                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                          June 21, 2019
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 JERRY E. BLAIR,

       Plaintiff - Appellant,                              No. 18-1417
                                                  (D.C. No. 1:18-CV-01774-LTB)
 v.                                                          (D. Colo.)

 DONDI OSBORNE,

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before CARSON, BALDOCK, and MURPHY, Circuit Judges.
                  _________________________________

      A Colorado state jury convicted Jerry Blair of several violations of state law,

and the state trial judge sentenced him to thirty-two years of imprisonment. Blair

subsequently sued the prosecutor—Dondi Osborne—in state court, alleging improper

conduct during his criminal proceedings. Osborne then removed the case to federal




      *
        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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
court, and the district court judge dismissed the action with prejudice. Blair appeals.1

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                                I.

      On June 19, 2018, Blair filed a three-count complaint (the “State Court

Complaint”)—which asserted two state-law claims and a 42 U.S.C. § 1983 claim—in

Colorado state court against Osborne. In that complaint, he alleged that at an August

2006 sentencing hearing, the sentencing judge in his state criminal case had

erroneously enhanced his sentence for possessing a deadly weapon when the

appropriate enhancement was for possessing a dangerous weapon. That error, Blair

contended, subjects him to additional years of imprisonment.

      The dangerous weapon enhancement was included in his state pre-sentence

report. Blair, however, alleged his counsel had not received that report before

sentencing and the state trial court denied defense counsel’s request to continue the

sentencing.

      At the sentencing hearing, Osborne allegedly represented, contrary to the pre-

sentence report, that the weapon at issue was a deadly weapon—not a dangerous

weapon—and that, as such, it was not appropriate to add an additional five years to

Blair’s sentence. Blair further alleged that the judge initially agreed with Osborne,

but that, as a result of Osborne’s other actions at the hearing, the judge nevertheless




      1
        Blair seeks leave to proceed on appeal in forma pauperis (“IFP”). We grant
his motion to proceed IFP and address his appeal on the merits.
                                            2
added the additional time to Blair’s sentence, which resulted in a sentence that

exceeded the statutory maximum.

      Blair subsequently filed several post-conviction motions to alter his sentence.

In the State Court Complaint, he alleged that Osborne either filed oppositions to

those motions or failed to file any response when she should have filed briefs in

support.

      Returning to the present proceedings, on July 12, 2018, Osborne removed the

State Court Complaint to the United States District Court for the District of

Colorado. The magistrate judge assigned to the case ordered Blair to file an amended

complaint on a court-approved prisoner complaint form.

      On September 4, 2018, the district court docketed an amended complaint (the

“First Amended Complaint”), which Blair had placed in the prison mail on August

30, 2018. The First Amended Complaint lacks much of the detail from the initial

State Court Complaint and suffers from a lack of clarity. It purports to assert two

claims. Claim One is titled “U.S[.] Const. 5th amend due process. 14th amend equal

protection. Abuse of process.”2 This claim relates to certain statements Osborne

made during Blair’s sentencing hearing and also asserts that Brady v. Maryland, 373

U.S. 83 (1963), required Osborne to provide him with his pre-sentence report at the

sentencing proceeding.




      2
          In both claims, Blair also cites to Colorado’s Rules of Professional Conduct.
                                            3
      Claim Two is titled “U.S. Const 4th amend unconstitutional arrest & false

imprisonment U.S. Const 5th amend due process of law. U[.]S. Const 6th amend

Right to trial by jury.” This claim relates to other statements Osborne made during

Blair’s sentencing hearing and to her subsequent failure to act to correct Blair’s

sentence.

      On September 17, 2018, Osborne moved to dismiss the First Amended

Complaint.

      On September 20, 2018, the district court dismissed the First Amended

Complaint with prejudice pursuant to its 28 U.S.C. § 1915A screening authority. The

district court reasoned that prosecutorial immunity barred Blair’s claims insofar as he

sued Osborne in her personal capacity and sovereign immunity barred his claims

insofar as he sued Osborne in her official capacity. The district court also noted that

even if Osborne were not entitled to immunity, Heck v. Humphrey, 512 U.S. 477

(1994),3 barred Blair’s claims.


      3
          In Heck v. Humphrey, the Supreme Court indicated that:

            in order to recover damages for allegedly unconstitutional
            conviction or imprisonment, or for other harm caused by actions
            whose unlawfulness would render a conviction or sentence invalid, a
            § 1983 plaintiff must prove that the conviction or sentence has been
            reversed on direct appeal, expunged by executive order, declared
            invalid by a state tribunal authorized to make such determination, or
            called into question by a federal court's issuance of a writ of habeas
            corpus, 28 U.S.C. § 2254. A claim for damages bearing that
            relationship to a conviction or sentence that has not been so
            invalidated is not cognizable under § 1983.

512 U.S. 477, 486–87 (1994) (footnote omitted) (emphasis in original).
                                              4
      On September 21, 2018, the district court docketed a purported amended

complaint (the “Purported Second Amended Complaint”), which Blair had placed in

the prison mail on September 18, 2018—before the district court dismissed the First

Amended Complaint. The Purported Second Amended Complaint is not a complete

complaint. Rather, it is a one-page document that asserts a third claim that Blair

seeks to add to his First Amended Complaint. That claim is titled “U[.]S. Const 4th

amend. No warrant shall issue but upon probable cause. 5th amend due process of

law. 6th amend. to be informed of the nature & cause of the accusation. 8th amend.

excessive fines nor cruel & unusual punishment shall not be inflicted. 14th amend.

due process & equal protection of laws.” It also cites to various Colorado Rules of

Criminal Procedure. This third claim relates to an allegedly unconstitutional lack of

specificity in the charging documents. The district court never expressly addressed

that document.

      The district court subsequently denied a motion for reconsideration. Blair now

appeals.

                                           II.

      Blair contends the district court erred when it dismissed his claims because:

(1) he sued Osborne in her personal capacity and, as such, only prosecutorial

immunity—not sovereign immunity—applies; and (2) Osborne abandoned her

prosecutorial role and is not entitled to prosecutorial immunity.4


      4
       Blair also raises other arguments. Because we resolve this appeal on
prosecutorial immunity grounds, we do not reach those arguments.
                                           5
      Blair’s argument lacks merit. In his brief, he argues Osborne abandoned her

prosecutorial capacity and forfeited prosecutorial immunity when she:

(1) corrected the presentence report during the sentencing hearing—which in Blair’s

view, caused her to act as a member of the probation department, not as an advocate;

and (2) filed vague charging documents.5

      Prosecutorial immunity bars claims for damages against a prosecutor sued in

her individual capacity.6 See Lewis v. Clarke, 137 S. Ct. 1285, 1291 (2017).

That immunity provides absolute immunity from suit for activities that are

“intimately associated with the judicial phase of the criminal process.” Imbler v.

Pachtman, 424 U.S. 409, 430 (1976). By contrast, “absolute immunity may not apply

when a prosecutor . . . is instead engaged in other tasks, say, investigative or



      5
         This argument appears to correspond to the claim raised in the Purported
Second Amended Complaint. The district court had not docketed that complaint
when it dismissed Blair’s claims and, as we previously noted, that complaint was
never expressly addressed by the district court. Blair does not, however, argue that
the district court should have taken any action with respect to that complaint.
Instead, he appears to assume that the claim raised in the Purported Second Amended
Complaint was before the district court and the district court’s order encompassed
both that claim and the claims from the First Amended Complaint. We will proceed
based on that assumption because it does not alter the outcome of this appeal.
      6
         We note that Blair also requested injunctive and declaratory relief in the first
amended complaint. Prosecutorial immunity does not bar courts from providing such
relief. See Supreme Court of Va. v. Consumers Union of U. S., Inc., 446 U.S. 719,
736 (1980). But Blair has never argued that prosecutorial immunity does not apply to
claims for injunctive and declaratory relief. Thus, he waived that argument. See
Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012) (“Arguments not clearly made in a
party's opening brief are deemed waived. This court has not hesitated to apply this
waiver rule to prisoner litigants.” (citations omitted)).

                                            6
administrative tasks.” Van de Kamp v. Goldstein, 555 U.S. 335, 342 (2009). In

essence, “a prosecutor is entitled to absolute immunity for those actions that cast him

in the role of an advocate initiating and presenting the government’s case.” Mink v.

Suthers, 482 F.3d 1244, 1261 (10th Cir. 2007).

       In some cases, “[d]rawing a proper line between these functions may present

difficult questions.” Imbler, 424 U.S. at 431 n.33. This is not one of those cases.

Prosecutorial immunity applies to the preparation of a vague charging document. Cf.

Kalina v. Fletcher, 522 U.S. 118, 129 (1997) (holding that prosecutorial immunity

applied to a prosecutor’s actions “in connection with the preparation and filing of . . .

charging documents” containing allegedly false information, except insofar as she

acted as a witness by attesting to the truth or the falsity of the facts in those

documents). We are also satisfied that prosecutorial immunity applies to Osborne’s

statements at the sentencing hearing because it is the prosecutor’s role as an advocate

to make requests, arguments, and concessions during such hearings.7 Thus, the




       7
         Although Blair did not specifically address the other actions he attributes to
Osborne, prosecutorial immunity applies to those actions as well. It is an advocate’s
responsibility to determine whether to file motions, whether to respond to the
opposing party’s motions, and to determine the contents of the advocate’s briefs.
Furthermore, even if Osborne did not provide the pre-sentence report to Blair and had
an obligation do so, that failure is intimately associated with the judicial process. Cf.
Powell v. Spear, 6 F. App’x 739, 741 (10th Cir. 2001) (unpublished) (“A prosecutor’s
withholding of evidence is an action ‘intimately associated’ with the judicial process.”)
(citing Imbler, 424 U.S. at 431 n.34)).

                                             7
district court did not err when it determined that Osborne was entitled to

prosecutorial immunity.8

                                          III.

       For the reasons stated above, we GRANT Blair’s motion to proceed IFP and

AFFIRM the district court’s judgment. We DENY Osborne’s motion to impose pre-

filing restrictions.




                                            Entered for the Court


                                            Joel M. Carson III
                                            Circuit Judge




       8
        Osborne filed a motion asking this Court to impose pre-filing restrictions on
Blair. We do not grant that motion at this time, but we may re-examine that decision
in a subsequent case.
                                           8
