[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 14

- 10464 Non

- Argument Calendar

________________________ D.C. Docket No. 1:13

- cv - 21894

- JIC

JUSSI K. KIVISTO, Plaintiff

- Appellant,

versus MICHAEL DAVID SOIFER, in his individual capacity, Defendant

- Appellee.

_______ _________________ Appeal from the United States District Court for the Southern District of Florida

________________________ (September 17, 2014) Before MARTIN , ANDERSON, and COX , Circuit Judges.
PER CURIAM:

Case: 14-10464 Date Filed: 09/17/2014 Page: 1 of 62 The plaintiff, Jussi K. Kivisto, appeals pro se the district cour t’s final judgment d ismissing with prejudice his pro se 42 U.S.C. §1983 First Amendment
claims against the defendant, Florida Bar counsel Michael D. Soifer

. Kivisto sue d Soifer in his individual capacity only. Soifer raised absolute prosecutorial immunit y as a Fed. R. Civ. B. 12(b)(6) defense to Kivisto’s First Amended Complaint, and the district court dismissed the complaint under Rule 12(b)(6) on th e basis of that defense . We affirm. This civil action arises indirectly out of a Florida disbarment pr oceeding. The Florida Bar initiated disbarment proceedings against Kivisto in October 2007. After Kivisto defaulted, the referee assigned to hear the matter entered Kivisto’s default and recommended disbarment to the Florida Supreme Court . Kivisto filed a petition to review the referee’s recommendation with the Florida Supreme Court, but failed to prosecute his petition in accordance with Florida Supreme Court rules

. T he court ultimately a ccept ed the referee’s recommendation as uncontested and dis barred Kivisto

. F l orid a Bar v. Kivisto , 49 So.3d 747 (Fla. 2010), cert. denied , 131 S. Ct. 2973 (2011). Kivisto’s disbarment as such is immaterial to his claims in this civil action

. What is material, however, is a sanctions order embedded in the Florida Supre me Court ’s disbarment proceeding , Kivisto’s behavior following entry of that order, and the Florida Bar’s response to that behavior

.

Case: 14-10464 Date Filed: 09/17/2014 Page: 2 of 63 After Kivisto petitioned the Florida Supreme Court to review the referee’s disbarment recommendation, he ignored briefing d eadlines, choosing, instead, to inundate the court with a plethora of filings that the court described as “repetitive and meritless.” Florida Bar v. Kivisto , 62 So

. 3d 1137, 1138 (Fla. 2011). Thi s prompted the c ourt to order Kivisto to show cause why his abusive tactics should
not be sanction ed. Kivisto ’s response did not satisfy the court

. The court direct ed its clerk not to accept any further filing from Kivisto that challeng ed his disbarment or s ought readmission to the Florida Bar , unless a member i n good standing of the Florida Bar signed the filing. Florida Bar v. Kivisto, 62 So. 3d at 1139

- 40

. After the Florida Supreme Court disbarred Kivisto, the Florida Bar filed a petition with the court for an order requiring Kivisto to show cause why he shou ld not be held in contempt of the disbarment order for continuing to hold himself out as a licensed, practicing atto rney (First Petition). Kivisto responded to the First Petition by filing papers with the Florida Supreme Court over his own signature and w ithout the signature of a member in good standing of the Florida Bar. This prompted Soifer, acting as Florida Bar counsel, to file the Second Petition, which sought from the Florida Supreme Court issuance of an order requiring Kivisto to show cause why he should not be held in contempt because his papers filed in
respons e to the First Petition violate d the sanctions order. The Florida Supreme

Case: 14-10464 Date Filed: 09/17/2014 Page: 3 of 64 Court denied the Second Petition without prejudice, opining that its issues could be addressed in resolving the Fi rst Petition, which remains pending. Kivisto contends in his First Amended Complaint that t he Second Petition violated his First Amendment rights. (The First Petition is not at issue.) Soifer contends that, as a prosecutorial advocate for the Florida Bar , he is absolutely immune from suit. We review de novo a district court’s Rule 12(b)(6) dismissal of a complaint with prejudice. Abdur

- Raham v. Walker , 567 F.3d 1278, 1280

- 81 (11 th Cir. 2009). Prosecutors, including state bar disciplinary advocates, are absolutely immune from all suits challenging their prosecutorial advocacy functions , so long as those functions occur within their territorial jurisdictions. See Hart v. Hodges , 587 F.3d 1288, 1295 (11 th Cir. 2009); Elder v. Athens

- Clarke County , 54 F.3d 694, 695 (11 th Cir. 1995); Carroll v. Gross , 984 F.2d 392, 393 (11 th Cir. 1993). Rules of the Florida Bar authorize its counsel to initiate contempt proceedings before the Florida Supreme Court. Florida Bar Rules 3

- 7.3 and

- 7.11. In determining the ava ilability of absolute prosecutorial immunity as a defense, it is immaterial whether the prosecutor acted negligently or even maliciously. Hart , 587 F.3d at 1298. We need n ot determine w hether the substance of either the First or the Second P etition f ell within the ambit of the Florida Supreme Court’s sanctions Case: 14-10464 Date Filed: 09/17/2014 Page: 4 of 65 order and, therefore, w ould have subject ed Kivisto to a c ontempt citation had the Florida Bar prevailed in one or both of the show cause proceedings

. We need not
determin e the relative “plausibilit y” of Kivisto ’s First Amendment c ontentions against Soifer in his First Amended Complaint

. The single dispositive question,

eas il y resolve d , is whether Kivisto’s allegat ions against Soifer with respect to the
S e cond P eti tion offer any plausible basis for d enying Soifer the protection of absolute immunity.
A bsolute prosecutorial immunity is an affirmative defense that t he party pleading it must prove. T he district court may dismiss a complaint with prejudice on the basis of the immunity defense if a Rule 12(b)(6) motion demonstrates that the complaint, with all of its allegations accepted as true, indisputably establishes the factual foundation of the defense. Rivera v. Leal , 359 F.3d 1350 (11 th Cir. 2004); Long v. Satz, 181 F.3d 1275, 1 279 (11 th Cir. 1 999)

. In the district court , Kivisto assert ed nothing more than that Soifer f iled the Second Petition without following procedural rules

– that is, negligently

– or as part of a personal vendetta against Kivisto

– that is, maliciously

– or both. The distr ict court accepted Kivisto’s asser tions as true

. A fter thoroughly analyz ing the parties’ factual asser tions and legal arguments, the district court correctly
determined under controlling decisional law that these assertion s, even if true, did not strip So ifer of ablosute immunity

.

Case: 14-10464 Date Filed: 09/17/2014 Page: 5 of 66 Kivisto also raises these contentions in this Court , and we agree with the district court that the alleged negligent or malicious behavior of Soifer, even if true, did not defeat his absolute immunity defense. Kivisto contends f or the first time on appeal that Soifer acted as a “complaining witness” and, therefore, is not entitled to absolute immunity. He did not argue this in opposition to Soifer’s Rule 12(b)(6) motion or in his motion to reconsider the district court’s order g ranting that motion. The Court will not consider contentions raised for the first time on appeal. See, e.g., Access Now, Inc. v. Southwest Airlines Co. , 3 8 5 F.3d 1324, 1331 (11th Cir. 2004). Moreover, e ven if we did consider the argument, we find nothin g in the First Amended Complaint that, if accepted as true, described Soifer as anything but a prosecutorial advocate of the Florida Bar protected by absolute immunity

. For the reasons stated in the district court’s order and this opinion, w e affirm the judgment of the district court dismissing this civil action with prejudice. 

### AFFIRMED. Case: 14-10464 Date Filed: 09/17/2014 Page: 6 of 6