     10-818-cv
     Kent v. Cardone



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United               States Court of Appeals
 2       for the Second Circuit, held at the               Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl               Street, in the City of
 4       New York, on the 5 th day of January,              two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                GUIDO CALABRESI,
 9                ROBERT D. SACK,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       KEITH A. KENT,
14                Plaintiff-Counter-Defendant-
15                Appellee,
16
17                     -v.-                                              10-818-cv
18
19       JOSEPH V. CARDONE,
20                Defendant-Appellant,
21
22       GLADYS M. DROUGHT, EDWARD STYMUS,
23       SHARON LEO,
24                Defendants-Counter-
25                Claimants,
26
27       COUNTY OF ORLEANS,
28                Defendant.
29       - - - - - - - - - - - - - - - - - - - -X
 1
 2   FOR APPELLANT:    Jeremy A. Colby (Michael P. McClaren, on
 3                     the brief), Webster Szanyi LLP, Buffalo,
 4                     New York.
 5
 6   FOR APPELLEE:     Nira T. Kersmich, Sudbury, Massachusetts.
 7
 8        Appeal from a decision and order of the United States
 9   District Court for the Western District of New York (Curtin,
10   J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the judgment of the district court be
14   REVERSED.
15
16        Defendant-Appellant Joseph Cardone (“Cardone”), the
17   District Attorney for Orleans County, New York, appeals from
18   a decision and order of the United States District Court for
19   the Western District of New York (Curtin, J.) denying
20   Cardone’s motion to dismiss the complaint on the basis of
21   absolute immunity. We assume the parties’ familiarity with
22   the underlying facts, the procedural history, and the issues
23   presented for review.
24
25        Plaintiff-Appellee Keith Kent (“Kent”), a logger from
26   Albion, NY, filed suit in the Supreme Court for the County
27   of Orleans against Gladys M. Drought (“Drought”), her
28   brother Edward Stymus (“Stymus”), her daughter Sharon Leo
29   (“Leo”), Cardone, and the County of Orleans, alleging
30   various causes of action arising out of a January 2006
31   logging contract between Kent and Drought, by which Kent
32   would pay $11,000 to log designated trees on Drought’s
33   property, plus an additional sum to log unspecified other
34   trees. As Kent was logging, Stymus raised a dispute as to
35   the value of the trees. Five days later, Leo filed a
36   complaint against Kent with the New York State Police
37   alleging that Kent took advantage of Drought. Three months
38   later, at the instigation of Drought, Leo, and Stymus, Kent
39   was arrested and charged with grand larceny in the third
40   degree, criminal possession of stolen property, tampering
41   with physical evidence, unlawful removal of protected
42   plants, and trespass.
43
44        Kent alleges that, while he was in police custody,
45   Cardone threatened to indict him if he did not pay Drought
46   the money that she sought for the trees--an amount that Kent
47   considered to be unreasonable; that Cardone presented

                                  2
 1   charges to a grand jury when Kent refused to pay; that after
 2   his presentation to the grand jury, Cardone followed several
 3   of them to a restaurant to continue his argument; and that
 4   the single charge in the resulting indictment (tampering
 5   with evidence) was eventually dismissed.
 6
 7        “When a district court denies immunity on a Rule
 8   12(b)(6) motion to dismiss, ‘we review the district court’s
 9   denial de novo, accepting as true the material facts alleged
10   in the complaint and drawing all reasonable inferences in
11   plaintiffs’ favor.’” Warney v. Monroe County, 587 F.3d 113,
12   120 (2d Cir. 2009) (quoting Johnson v. Newburgh Enlarged
13   School Dist., 239 F.3d 246, 250 (2d Cir. 2001)). We have
14   jurisdiction to review a denial of absolute immunity under
15   the collateral order doctrine if the denial involves only a
16   question of law. See Nixon v. Fitzgerald, 457 U.S. 731,
17   742-43 (1982).
18
19        Prosecutors are entitled to absolute immunity when they
20   engage in activities “intimately associated with the
21   judicial phase of the criminal process,” Imbler v. Pachtman,
22   424 U.S. 409, 430 (1976), and done “in the course of [their]
23   role as . . . advocate[s] for the State,” Buckley v.
24   Fitzsimmons, 509 U.S. 259, 273 (1993). Whether an action is
25   “prosecutorial” is determined by a “‘functional approach,’
26   which looks to ‘the nature of the function performed, not
27   the identity of the actor who performed it.’” Id. at 269
28   (citations omitted) (quoting Burns v. Reed, 500 U.S. 478,
29   486-87 (1991); Forrester v. White, 484 U.S. 219, 229
30   (1988)). “In Imbler, the Court concluded that the ‘reasons
31   for absolute immunity appl[ied] with full force’ to the
32   conduct at issue because it was ‘intimately associated with
33   the judicial phase of the criminal process.’” Van de Kamp
34   v. Goldstein, --- U.S. ---, 129 S. Ct. 855, 861 (2009)
35   (alteration in original) (citing Imbler, 424 U.S. at 430).
36   Although the “duties of the prosecutor in his role as
37   advocate for the State involve actions preliminary to the
38   initiation of a prosecution and actions apart from the
39   courtroom,” Imbler, 424 U.S. at 431 n.33, absolute
40   prosecutorial immunity is afforded “only for actions that
41   are connected with the prosecutor’s role in judicial
42   proceedings, not for every litigation-inducing conduct,”
43   Burns, 500 U.S. at 494.
44
45        A prosecutor therefore has absolute immunity from a
46   claim for damages for “initiating a prosecution,” Imbler,
47   424 U.S. at 431; see, e.g., Barr v. Abrams, 810 F.2d 358,

                                  3
 1   362 (2d Cir. 1987) (absolute immunity extends to prevent
 2   suit against prosecutors based on their actions in filing
 3   criminal information and procuring arrest warrant), as well
 4   as for his performance of tasks as an advocate in the
 5   conduct of the prosecution, see, e.g., Dory v. Ryan, 25 F.3d
 6   81, 83 (2d Cir. 1994) (holding that a prosecutor was
 7   absolutely immune from liability on damages claim that he
 8   conspired to present false evidence at criminal trial).
 9
10        Absolute immunity likewise extends to an agreement to
11   forgo prosecution in exchange for certain types of
12   concessions. In Taylor v. Kavanagh, 640 F.2d 450 (2d Cir.
13   1981), for example, the plaintiff brought a suit for damages
14   on the ground that in a prior criminal proceeding the
15   prosecutor had misrepresented facts to him, inducing him to
16   plead guilty to certain charges; we ruled that the
17   prosecutor enjoyed absolute immunity because he was plea
18   bargaining, a prosecutorial function. Id. at 453. In
19   Schloss v. Bouse, 876 F.2d 287 (2d Cir. 1989), the
20   prosecutor required plaintiffs, who had been wrongfully
21   arrested, to execute releases in favor of various municipal
22   entities in exchange for his agreement not to prosecute.
23   Id. at 292-93. Emphasizing that “the demand for releases
24   and the threat to prosecute were interdependent,” we
25   concluded that the prosecutor must be understood to have
26   made “a prosecutorial decision, albeit a conditional one,”
27   and that the demand for the releases was akin to a plea
28   bargain. Id. at 291. Absolute immunity was conferred
29   without regard to the prosecutor’s motivation in securing
30   the releases, because negotiation of a plea bargain is an
31   act within a prosecutor’s jurisdiction as a judicial
32   officer. Id. at 292. In that case, “we [we]re not
33   confronted with a demand that [wa]s foreign to the
34   prosecutor’s office,” id., and we expressly rejected any
35   notion that
36
37       the prosecutor may with impunity couple a threat of
38       prosecution with all manner of demands, for example,
39       demands for bribes or sexual favors. A government
40       official does not have absolute immunity for acts that
41       are manifestly or palpably beyond his authority, or
42       performed in the clear absence of all jurisdiction.
43
44   Id. at 291 (internal quotation marks and citations omitted).
45   In order to determine whether a prosecutor has lost his
46   shield of absolute immunity by making his prosecutorial
47   decision conditional on the suspect’s performing a demanded

                                  4
 1   act, a court must look to “the nature of the conduct that
 2   was allegedly intertwined with the prosecutorial decision
 3   and deny absolute immunity if the demand was plainly beyond
 4   the prosecutor’s jurisdiction.” Id. at 291-92 (internal
 5   citation omitted). If the prosecutor has acted “‘without
 6   any colorable claim of authority’” to impose the condition
 7   in question, his conduct is not protected by absolute
 8   immunity. Id. at 291 (quoting Barr, 810 F.2d at 361).
 9
10        Cardone’s demand that Kent make payment to Drought is
11   manifestly indistinguishable from the demand made in
12   Schloss. The district court erroneously analogized
13   Cardone’s conduct to solicitation of a bribe; the complaint
14   lacked any allegations to support such an inference. Kent
15   was arrested pursuant to a criminal complaint, and the
16   decision to seek an indictment was within Cardone’s
17   prosecutorial discretion. Cardone’s demand that Kent pay
18   Drought could arguably be considered a demand that Kent make
19   restitution to Drought in exchange for Cardone’s agreement
20   not to prosecute. See Schloss, 876 F.2d at 291.
21
22        The district court did not consider Cardone’s alleged
23   discussion with grand jurors, but we conclude that he would
24   also be entitled to absolute immunity for such conduct. A
25   prosecutor is absolutely immune with respect to non-
26   investigatory conduct before a grand jury. See Imbler, 424
27   U.S. at 431 (holding prosecutors absolutely immune for
28   initiating prosecutions and presenting evidence); accord
29   Fitzsimmons, 509 U.S. at 274 n.5 (acknowledging that
30   absolute immunity shields “a prosecutor’s decision to bring
31   an indictment, whether he has probable cause or not”);
32   Pinaud v. County of Suffolk, 52 F.3d 1139, 1149 (2d Cir.
33   1995) (holding district attorneys absolutely immune from
34   claim for malicious prosecution and presentation of false
35   evidence to the grand jury); Hill v. City of New York, 45
36   F.3d 653, 660-61 (2d Cir. 1995) (holding prosecutors and
37   those working under their direction absolutely immune for
38   malicious prosecution and for conduct before a grand jury);
39   see also Zahrey v. Coffey, 221 F.3d 342, 347 (2d Cir. 2000)
40   (noting parties’ agreement that absolute immunity shields
41   prosecutor for presentation of “allegedly false testimony to
42   the grand jury”).
43
44        The actions Cardone is alleged to have taken are wildy
45   inappropriate and may furnish grounds for a finding of
46   prosecutorial misconduct. See, e.g., ABA Standards for
47   Criminal Justice: Prosecution Function, Standard 3-3.5

                                  5
 1   Relations with Grand Jury (“(b) The prosecutor should not
 2   make statements or argument in an effort to influence grand
 3   jury action in a manner which would be impermissible at
 4   trial before a petit jury; (c) The prosecutor’s
 5   communications and presentations to the grand jury should be
 6   on the record.”). Nevertheless, we apply a “functional
 7   approach” to determine whether a prosecutor is entitled to
 8   absolute immunity; the conduct alleged was done in his
 9   prosecutorial role as an advocate, and it cannot be said
10   that the conduct was “without any colorable claim of
11   authority” because the prosecutor was still advocating in
12   favor of indictment. Schloss, 876 F.2d at 291.
13   Accordingly, although the district court might be well
14   advised to assure itself that Cardone’s alleged misconduct
15   has been called to the attention of the appropriate
16   authorities, the district court’s decision denying Cardone
17   absolute immunity must be reversed.
18
19        We have considered Kent’s remaining arguments and
20   consider them to be without merit. For the foregoing
21   reasons, the judgment of the district court is REVERSED.
22
23
24                              FOR THE COURT:
25                              CATHERINE O’HAGAN WOLFE, CLERK
26




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