about the civil rights by salt lake county investigators and prosecutors by bringing identical felony charges against him without probable cause not once but twice he feels that dismissal of his complain greatly we have section ninety three united states code in order to give victims of this type of misconduct an opportunity to seek redress and of course access to the courts and so we're asking obviously today that you as we go forward assume our claim can you describe specifically what the allegations were against the prosecutors and i want to you know just to preface my question i have a pool of the prosecutors because we're looking at house absolute munity  then the non prosecutor's investigators a little different approach so if you could focus on the prosecute prosecutors and tell me how the complaint alleges that they are are liable for conduct outside the prosecutorial function which would be which would entitle them to al meeting that you're out of as a former attorney general a lifetime prosecutor i understand appreciate immunity in absolute immunity but let me just say that as human as you the pages of the appendix but those allegations right out of the complaint are that chief deputy hall directed and internal the district attorney investigation against constable warneke and directing his own allegations are that this was not just your routine investigate it was go out and find those allegations we could bring in yes and those are really isn't that part of the prosecutorial function well if it's not in that as a state by the courts in that if you  probable cause which was established later by the trial judge a criminal trial judge who found no problem of probable cause based on the same allegations and same facts against his wife who was charging time and then within a few weeks charges were refiled against him without probable cause again your honor that's that's i quite how i read what happened it wasn't so much like a probable cause for a not that's not exactly how ok we're gonna get so both cussed when he got his wife and worked for him in the office were both charged with the same tampering with a witness tampering with the evidence for changing this report when they both went to their trial together the the progress with men just as now you're here just before so he did he did this it was dismissed without prejudice but then they went forward with the same two witnesses that they use in the second problem cause har his reputation and to make a mountain out of a molehill in this situation and really going after and we believe that we will be able to prove the facts if given the opportunity to access the courts that there was a reason for that and why they came back a second time even knowing they did not have probable cause but least the judge had told them it is so the question is whether you have a cause of action that the charging function by the prosecutor is protected by absolute immunity  as he has probable cause i don't recall reading that qualification to absolute immunity for the prosecutorial decision the decision to pro to the press we have addressed that that's one of the other god allegations where he stepped outside they stepped outside the prosecutorial function but in this case to direct that investigation and then knowing the judge just said no probable cause that you still at that point he made immunity if the prosecutor's not exercised the prosecutorial function and you have allegations here of improper investigation and as you mentioned improper disclosure the press so how did either of those violate your client's constitutional rights what what was unconstitutional about the investigation here what do you say in your complaint in for example that they do that they committed unlawful search with respected speaking to the press i don't think you have any specific allegations in the complaint about what was said publicly or not he would argue the fabricated evidence and struc investigators the fabric of evidence in order to find what is that what is the allegation of fabrication of evidence in the complaint what specifically alleged to have been the fabrication betting that the investigators and prosecutors conspired with this former employer employee mr herbal shimer to fabricate evidence of a changing or manipulation of a report of what is it happened in a in a justice court because it went back and forth as itself beginning with paragraph twenty six twenty seven twenty nine thirty five and thirty six what was the false information that prosecutors encouraged herbal shimer to give them well they were there were two things get get us that take for example go go and tape a training session for us or to sleep and  and during that whether he was there was a little if you solve this very you have a but using a metaphor if you will with cheat with secret words or whatever that then they could use against him to say he wasn't talking about this this example this traces he was specifically talking about report writing to things leaving things out of report taking things out of a report of an incident or actually fabricating information put in that report those are the allegations however slim they might be we argue that and however better they could be articulated and we would love that opportunity to better more deeply articulate those but just what has been alleged in those paragraphs your honor that i cited to you that that there was sufficient within those four corners to take to make a reasonable inference that that is plausible in fact and inferring also from from the argument that you know why do you why do you come back and are so aggressively going to get this constable for felony charges with such weak evidence one with two having had a judge already ruled there's no further i meant his complaint and as there are claims relating to the filing of the criminal charges against him mr want to however has given this court no compelling reason to do so in his appeal there are three questions first whether the district court correctly determined absolute immunity as the county prosecutor's second whether the district court correctly determined that mr wernick failed to sufficiently plead claims as analyzed under the  we quit to plausibly it was that the group the investigators and the prosecutors conspired to create some evidence that you know  far as whether the complaint itself to the claim the transcripts from the preliminary hearing cannot be included if the court did in fact review the c d s or the transcript of the think you can look at them and then the court and it's just that i see so the reliability rule is not that if you consider matters outside the pleadings that you should convert the proceedings under the rule to pursue a motion considered as a motion for summary judgment but instead it's whether he who relied on it for purposes of his decision is that what you're saying the rule is or how would you state what the rule is what the line is on that there are some circumstances where other documents could be included in there if it is referred to in the complaint and attach their open and central to those claims other i know jurisdiction that they can be relied on as part of the complaint this isn't something where we have a breach of contract claim we're describing you know contract it was entered into between x and y on such and such date for such and such transcript referred to in the complaint the transcript was not the hearing and dismissed for dismissal with what at the hearing cells and if they were it was presented by the time we had the hearing on the motions to dismiss and and as a point of clarification there were the two transcripts that were present both parties presented a transfer tax they were not identical but we both presented trans fats and one of the university of official transcript i will in my office had an official transcript i know one of them is different i'm not sure who prepared them and the star is the first preliminary hearing transfer that was for the date where mr warneke was originally it was his probable cause or the preliminary hearing that was set and as your honor pointed out at that hearing and i just now so they did go on to hear evidence in the allana works when it mattered however that is not something that can be relied on in this matter it's from a different matter and it's not central to these claims  so that any reliance on that is improper as far as looking at a transcript or what happened with respect to the claims on mr against mr warneke and it's just muscle and based on the wrong statute and then the request to dismiss the case that it could be with respect to invent the allegations as to investigatory activities they couldn't quite reach that conclusion it was still i don't know although the allegations of investigatory conduct by all of the prosecutors all of the county defend and whether those were not protected by absolute immunity and it's my understanding in some cases that can be but it depends on on what that conduct as  did wrong as far as what the law they incorrectly applied or incorrectly used and that is fatal to all of the issues that are now here matter of course and it was not with the agreement of counsel or with permission from the court and after moving to strike that was eventually and the court let that complaint stand ground that the district court gave for not allowing leave to amend the complaint and they went on further and found that given that had then the length of time which was i believe over three years at that time at that  and the fact that he had not moved to other than a complaint they believe that indicated that his claims and he would not be able did not have a claim he could state only in a footnote to the court addressed utility and they  found that even if these other allegations that were being put into the motion for opposition to the motion to dismiss as well as the objection or that response to objection to the magistrate's recommendation and th included the newspaper clippings that were then cited as well as the transcript and an affidavit other factual allegations that were later raised that were not in the original pleading and they found that there was still not enough to show that there was a claim and specifically to show that there was any doctor patient rights you're confusing me i thought you said that the court did believe are in the complaint and despite all of that he's continuing to and looking at the the issues and the decision of the district court where they've looked at whether he can say to claim under nine hundred eighty three under hundred eighty five and there are not sufficient facts that have been alleged and there's there's been nothing that's been provided that indicates that a claim can be stated mr warn has has failed to state a claim and or identify any issue with the district court's decision and he has not demonstrated what the jester court did wrong and there's absolute immunity with respect to the charging just right although i know you disagree what the problem as i understood you to be saying earlier is that the defendant falsified information so what did a disagreements and some could say that what your client was asking herbal strieber to do was totally appropriate now but what was false about what herbal simer said as opposed to why was wrong to think this was a violation of law but during the best bit of tory stage herbal shimer said that he was ordered structured by his boss to omit and to change certain things that he put in his original report and his later during as part of the investigative function if i may just just read this is actually from the district court's order page thirty of appellate appendix where she says though the allegation is threadbare the complaint as a whole states enough  prosecutors were searching for clues in corroboration that might give might give them probable cause to initiate a prosecution against plaintiff starting buckley such searching this is judge cannot be construed as advocacy and as they were not entitled absolute unity right right but that's the first step then second step is how did that violate any constitutional rights it's constitutional for investigators to investigate to try to establish probable cause that's an every day what did they forward and however it may lead going into struck in and working with directly their investigators to try and establish probable cause which they were unable to do and and that's why we're here if we can if i could just get refocus on maybe perhaps just the second time he was charged that was clearly without probable cause and just to quote me lender which was misquote affected by that by judge perry to establish malicious prosecution play that must prove that they found it initiated or continue proceeding without probable cause not with or without it's with now probable cause i have a plus with the benefit of the light in that it would appeal you've been there done that now ho do you propose to amend your complain that i haven't had discovered through all these discussions is that we will provide more specific evidence that of both investment what was unconstitutional investigation both by investigators and prosecutors as well as flesh out even more and more deeply the two trials and we would if i could just quickly address i know i'm out of time when i put my policies you said a follow up ok if your view make reference to the transcript of the proceeding probable cause proceedings good as as the plaintiff admitted excuse me as the county admitted they they attached it to the motion to dismiss both well that they were parts of those but they referred to an attached copies of those two hearings through their motion to dismiss  tampered with evidence when they did not have probable cause to establish that he had just had done that and that was proven out by a court judge obviously obviously up and we don't have a district court trial judge to be going to come a case finding no probable cause