United States Court of Appeals 

For the First Circuit 

No. 18-2261 

ROLANDO PENATE, 

Plaintiff, Appellee, 

v. 

ANNE KACZMAREK, 

Defendant, Appellant, 

KRIS FOSTER; RANDALL RAVITZ; JOSEPH BALLOU; ROBERT IRWIN; RANDY 

THOMAS; SONJA FARAK; SHARON SALEM; JAMES HANCHETT; JULIE NASSIF; 

LINDA HAN; ESTATE OF KEVIN BURNHAM; STEVEN KENT; JOHN WADLEGGER; 

GREGG BIGDA; EDWARD KALISH; CITY OF SPRINGFIELD, 

Defendants. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Katherine A. Robertson, U.S. Magistrate Judge] 

Before 

Lynch, Kayatta, and Barron, 

Circuit Judges. 

David H. Rich, with whom Maria T. Davis and Todd & Weld, LLP 

were on brief, for appellant. 

Luke Ryan, with whom Sasson, Turnbull, Ryan & Hoose was on 

brief, for appellee. 

Matthew R. Segal, American Civil Liberties Union Foundation 

of Massachusetts, Inc., Emma Quinn-Judge, Monica Shah, and Zalkind 

Duncan & Bernstein LLP on brief for American Civil Liberties Union 

of Massachusetts and Massachusetts Association of Criminal Defense 

Lawyers, amici curiae. 
June 26, 2019 
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LYNCH, Circuit Judge. This appeal presents novel 

questions about the scope of absolute prosecutorial and government 

attorney immunity from claims asserted under 42 U.S.C. § 1983. 

Appellee Rolando Penate filed this § 1983 action against 

seventeen defendants after the dismissal with prejudice of his 

2013 Massachusetts criminal conviction for drug distribution. 

This appeal is from an order denying absolute immunity to one of 

those defendants, Anne Kaczmarek, a former Massachusetts Assistant 

Attorney General. Penate's complaint alleged that Kaczmarek 

unlawfully withheld (and worked with others to unlawfully 

withhold) exculpatory evidence from Penate's counsel; from the 

Hampden County, Massachusetts District Attorney, whose office 

prosecuted Penate in Hampden County Superior Court; and from that 

state court. The withheld evidence showed that a drug laboratory 

chemist, Sonja Farak, had been battling drug addiction and had 

tampered with samples she was assigned to test around the time she 

tested the samples in Penate's case. Kaczmarek had obtained the 

evidence at issue while she was prosecuting Farak on state charges 

of tampering with evidence and drug possession. 

After the magistrate judge rejected Kaczmarek's motion 

to dismiss on grounds of absolute immunity, Penate v. Kaczmarek, 

No. 17-cv-30119, 2018 WL 6437077, at *16 (D. Mass. Dec. 7, 2018), 

Kaczmarek filed this interlocutory appeal. We affirm. 
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We are required to "make two important assumptions about 

the case: first, that [Penate's] allegations are entirely true; 

and, second, that they allege constitutional violations for which 

§ 1983 provides a remedy." Buckley v. Fitzsimmons, 509 U.S. 259, 

261 (1993); see also Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 28 

(1st Cir. 1995). The first of these assumptions is critical here, 

as our rejections of Kaczmarek's novel claims to absolute immunity 

are fact-bound conclusions. 

After recounting the allegations in the complaint and 

the history of this suit, we address Kaczmarek's two theories for 

absolute immunity.1 She first argues that she enjoys absolute 

prosecutorial immunity because the conduct alleged in the 

complaint occurred during the time period when she was assigned to 

prosecute Farak. We reject this argument because, on the facts 

alleged in the complaint, Kaczmarek's decision to withhold 

evidence from the criminal prosecution of Penate lacked a 

"functional tie" to her prosecutorial role in Farak's separate 

case. Buckley, 500 U.S. at 277. Kaczmarek alternatively seeks 

absolute immunity on the ground that, in performing some conduct 

alleged in the complaint, she functioned as an advocate for the 

government in an evidentiary hearing associated with the criminal 

case against Penate. But certain allegations in the complaint are 

 1 Kaczmarek has not raised the defense of qualified 

immunity. 
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best read to allege that Kaczmarek played an administrative role 

concerning this hearing. On that basis, we reject this second 

argument for absolute immunity. 

I. 

A. Facts Alleged in the Complaint 

Penate was charged by the Hampden County District 

Attorney with several drug-related offenses on November 16, 2011. 

The suspected drugs were sent to the Massachusetts Department of 

Public Health's Amherst Drug Lab and were assigned to Farak for 

analysis. Farak reported that the substances from Penate's case 

had all tested positive for the presence of controlled substances. 

Farak tested the samples on December 22, 2011, January 

6, 2012, and January 9, 2012. Also on December 22, Farak entered 

on a Diary Card kept as part of her treatment for drug addiction 

that she "tried to resist using [at] work but ended up failing." 

Farak later placed this Diary Card in the trunk of her 

car, where, as discussed below, it was found, along with similar 

worksheets, by the state police. Those documents revealed that, 

during the period that the lab held the samples in Penate's case, 

Farak had struggled with drug addiction, had frequently consumed 

drugs while at work, and had often tampered with and used drug 

samples and supplies held by the lab. At the heart of this case 

is Kaczmarek's failure to disclose this exculpatory evidence to 
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Penate, to his prosecutor, and to the court in his criminal 

proceeding.2

The charges against Penate were still pending when the 

Massachusetts Attorney General's Office (AGO or AG) began 

investigating Farak for misconduct at the Amherst Drug Lab. On 

January 19, 2013, AGO investigators obtained a warrant to search 

Farak's car, searched the car, and seized hundreds of pages of 

paper, including the Diary Card and other mental health worksheets.

Farak was charged with tampering with evidence and drug 

possession on January 22, 2013. Kaczmarek, a prosecutor in the 

AG's Enterprise and Major Crimes Unit, was assigned to prosecute 

Farak, who ultimately pleaded guilty in January 2014.

The complaint then tracks the AGO's actions related to 

the exculpatory evidence that Penate claims was unlawfully 

withheld during his criminal proceeding. The Diary Card and other 

mental health worksheets first went unmentioned or were 

 2 Penate also claims that Kaczmarek somehow violated his 

constitutional rights by artificially narrowing the scope of the 

investigation against Farak, after Farak had been arrested and 

arraigned. But, because that claim concerns Kaczmarek's choices 

regarding the course of a prosecution she was actually conducting, 

after a probable cause determination had been made, absolute 

immunity does bar it. See Buckley, 509 U.S. at 273 ("[A]cts 

undertaken by a prosecutor in preparing for the initiation of 

judicial proceedings or for trial, and which occur in the course 

of his role as an advocate for the State, are entitled to the 

protections of absolute immunity."); see also Kalina v. Fletcher, 

522 U.S. 118, 129 (1997) (holding that a prosecutor's "activities 

in connection with the preparation and filing of . . . charging 

documents . . . are protected by absolute immunity"). 
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characterized as "assorted lab paperwork" by investigators in 

police reports and returns for search warrants. "This was not an 

oversight," the complaint alleges, "but reflected a collective 

decision on the part of Kaczmarek, . . . [Police Sergeant Joseph] 

Ballou, and . . . [others] to deny the existence of this highly 

probative evidence." The complaint then alleges that, around the 

same time, Kaczmarek discouraged Ballou from following up on an 

allegation of evidence tampering by Farak in 2005. 

In February 2013, Ballou attached copies of the Diary 

Card and other mental health worksheets to an email to Kaczmarek 

with the subject line "FARAK Admissions." "Here are those forms 

with the admissions of drug use I was talking about," he wrote. 

In March, neither the Diary Card nor the other mental 

health worksheets were included in the packets of evidence related 

to Farak provided to all of the Massachusetts District Attorneys. 

The packets were accompanied by a letter from the head of the AG's 

Criminal Bureau, John Verner; the letter explained that the AG was 

investigating Farak and stated, "Pursuant to this office's 

obligation to provide potentially exculpatory information to the 

District Attorneys as well as information necessary to your 

Offices' determination about how to proceed with cases in which 

related narcotic evidence was tested at the Amherst Laboratory, 

please find the below listed materials . . . ."
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That same day in March, Kaczmarek submitted to Verner 

and her other supervisors a Prosecution Memo that contained 

multiple references to Farak's mental health worksheets. 

Kaczmarek stated that the worksheets had "not been submitted to 

the [Farak] grand jury out of an abundance of caution," although 

"[c]ase law" indicated that "the paperwork [was] not privileged." 

Verner responded with a hand-written note telling her that these 

documents had "NOT" been "turned over to DAs offices yet." 

Despite this withholding of the mental health worksheets 

from the District Attorneys (and later from Penate and the Hampden 

County Superior Court), Kaczmarek did disclose the worksheets to 

Farak's defense attorney. In doing so, Kaczmarek told the defense 

that the documents would not be turned over to any "Farak 

defendants" (that is, defendants seeking relief based on Farak's 

misconduct) and that the AG's office considered the documents to 

be "privileged." 

Penate, who was awaiting his trial on the criminal 

charges, filed a motion to dismiss in July 2013 based on the 

charges against Farak. The judge ordered an evidentiary hearing 

on the issue of Farak's misconduct between November 2011 and 

January 2012, when the lab had custody of the substances from 

Penate's case. Penate's motion was consolidated with similar 

motions from about a dozen Farak-defendant cases pending in Hampden 

County Superior Court. A hearing in these consolidated motions 
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on the timing and scope of Farak's misconduct was scheduled for 

September 9, 2013. 

Before the hearing, Assistant District Attorney Eduardo 

Velazquez, who was prosecuting Penate, sought any exculpatory 

evidence for the hearing from the AGO. He was told that all 

relevant evidence had already been provided to the DAs, even though 

the mental health worksheets, as Verner had noted, had "NOT" been 

disclosed. 

Ballou received a subpoena duces tecum for the hearing 

on the consolidated motions "command[ing] the production of all 

documents and photographs pertaining to the investigation of Sonja 

Farak and the Amherst Drug Lab."3 Assistant Attorney General Kris 

Foster, from the AGO's Appeals Division, was assigned to handle 

the response to the subpoena. In meetings about how to respond 

to the subpoena, Kaczmarek divulged to Foster and Foster's 

supervisor, Randall Ravitz, that she and Ballou possessed the 

mental health worksheets. But Kaczmarek took the position that 

these documents were irrelevant to the Farak defendants. She also 

 3 Before Penate's motion was consolidated with the other 

Farak defendants' motions, Penate served Ballou and Kaczmarek with 

subpoenas to testify at the evidentiary hearing ordered in Penate's 

case. However, the complaint does not allege that Kaczmarek was 

subpoenaed to appear at the post-conviction proceeding. The 

allegations in the complaint about Kaczmarek recounted in the 

following paragraphs all pertain to the Ballou subpoena and a 

related court order. 
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urged that the documents should not be produced because several 

contained information about Farak's mental health treatment.

Foster filed a motion to quash the subpoena. In the 

alternative, Foster sought a protective order excluding from the 

scope of the subpoena information including "emails responsive to 

the subpoena" and "information concerning the health or medical or 

psychological treatment of individuals."

Ballou testified at the hearing on the consolidated 

motions. At Foster's instruction, Ballou did not reveal the 

existence of the mental health worksheets. During the hearing, 

the judge ordered Foster to review Ballou's "file" on Farak and to 

present to the court for in camera review copies of any undisclosed 

documents in the file. 

Foster, Kaczmarek, and Verner discussed whether the 

order required Ballou to submit his emails to Kaczmarek about 

Farak. Kaczmarek ultimately asked Ballou to bring his file about 

the case to Boston for her to review. The paper file Ballou 

brought to Boston contained none of the mental health worksheets, 

so Kaczmarek told Foster that all of the documents in Ballou's 

file had already been disclosed. Foster then sent the judge a 

letter stating that "every document in [Ballou's] possession has 

already been disclosed." 

The day Foster sent the letter, Penate's counsel emailed 

Foster requesting to inspect the documents seized from Farak's 
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car. Foster forwarded the email to Kaczmarek, who responded: "No. 

Why is this relevant to this case. I really don't like him." 

Foster told Penate's counsel that the AG's position was that the 

evidence from the car was irrelevant to any case other than 

Farak's.

Penate's motion to dismiss the criminal charges was 

denied by the state court based on a finding that Farak's 

misconduct began after she handled the samples in Penate's case. 

Although Penate subpoenaed Kaczmarek to testify at his trial, 

Foster's motion to quash the subpoena was granted, as was 

Velazquez's motion in limine to preclude Penate from arguing that 

Farak was engaged in misconduct between November 2011 and January 

2012. In December 2013, Penate was convicted of one count of 

Distributing a Class A substance and was sentenced to five to seven 

years in prison.

In October 2014, an inspection of the evidence found in 

Farak's car for a different Massachusetts criminal case revealed 

the Diary Card and the other mental health worksheets. This 

discovery prompted Verner, the head of the AG's Criminal Bureau, 

to send copies of all of the documents seized in the car to the 

Massachusetts DAs in November 2014.

Based on the newly produced evidence, Penate filed a 

motion for a new trial in 2015, which was again consolidated with 

the cases of other Farak defendants. These defendants sought 
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discovery from the AGO on prosecutorial misconduct by attorneys in 

that office. In opposing the discovery, the AGO represented: 

The defendants' proposed claim of 

prosecutorial misconduct based on actions by 

the Attorney General's Office fails for the 

very simple fact that the AGO is not the 

prosecutor of any of these cases. Certainly, 

the AGO prosecuted Sonja Farak; but this is 

not Farak's case. Instead, in these cases the 

AGO was a non-party from which the defendants 

previously sought expansive post-conviction 

discovery. In that capacity, the AGO was well 

supported by case law in presenting arguments 

opposing the proposed discovery requests, just 

as any other non-party might do. 

In January 2017, Penate's motion for a new trial was 

allowed, with the assent of the Hampden County DA. In June 2017, 

a judge dismissed Penate's conviction with prejudice. The judge 

found that "Kaczmarek's and Foster's deliberate withholding of 

exculpatory evidence was particularly egregious in the Penate 

case" and "qualifies as a fraud upon the court."

B. History of this Suit 

Penate filed this suit on September 5, 2017 in federal 

district court in Massachusetts. His complaint asserted two 

claims against Kaczmarek: the § 1983 claim already mentioned and 

a state tort law claim for intentional infliction of emotional 

distress. Under Massachusetts law, Kaczmarek's immunity from the 

tort claim falls with her immunity from the § 1983 claim.4 See 

 4 Kaczmarek's opening brief on appeal argues in a single 

paragraph that the tort claim is also "barred by the general 
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Chicopee Lions Club v. Dist. Att'y for Hampden Dist., 485 N.E.2d 

673, 677 (Mass. 1985). 

Count IV of the complaint asserts § 1983 violations by 

Kaczmarek, Foster, and Foster's supervisor, Ravitz. It alleges 

that Kaczmarek knew that the mental health worksheets were 

exculpatory evidence in the cases of Farak defendants like Penate 

and that Kaczmarek had a duty under Brady v. United States, 373 

U.S. 83 (1963), to disclose such evidence and to make truthful 

statements about such evidence. In paragraph 433, the complaint 

states that Kaczmarek, Foster, and Ravitz, "prior to, during, and 

following Plaintiff's trial, intentionally, recklessly, and/or 

with deliberate indifference to their legal obligations, concealed 

Brady material, lied about, and otherwise failed to disclose Brady 

material to the Hampden County ADA prosecuting Plaintiff." 

Paragraph 434 alleges the same failure to disclose, to "Plaintiff's 

counsel and the Hampden County Superior Court."5 Count VIII 

 

Massachusetts common law litigation privilege." But Kaczmarek did 

not raise this defense in the district court, the magistrate judge 

did not rule on it, and we do not consider it. See United States 

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990); see also EspinalDominguez v. Puerto Rico, 352 F.3d 490, 495-96 (1st Cir. 2003) 

(describing the scope of appellate jurisdiction from non-final 

district court orders). 

5 In the order denying Kaczmarek's motion to dismiss, the 

magistrate judge recounted the complaint's allegations that 

Kaczmarek conspired with investigators to mischaracterize the 

mental health worksheets as "lab paperwork" and that Kaczmarek 

discouraged Ballou from following up on a lead. See Penate, 2018 

WL 6437077, at *14. To the extent these allegations are offered 

to support a claim that Kaczmarek violated Penate's constitutional 
- 14 - 

alleged that this conduct by Kaczmarek amounted to the intentional 

infliction of emotional distress.

Kaczmarek's motion to dismiss the complaint argued that 

she was entitled to absolute immunity, raising the two theories 

previously identified. The magistrate judge denied the motion 

because Penate's claims against Kaczmarek were "not related to her 

prosecution of Farak," Penate, 2018 WL 6437077, at *16, and because 

Kaczmarek was not engaged in a function analogous to a prosecutor's 

when she worked on the requests for exculpatory information in the 

AG's and Ballou's possession, see id. at *15.

II. 

A. Jurisdiction, Standard of Review, and Kaczmarek's Burden 

We have jurisdiction over Kaczmarek's interlocutory 

appeal from the denial of immunity because it "turns on a purely 

legal question." Limone v. Condon, 372 F.3d 39, 50 (1st Cir. 

2004); see also Filler v. Kellett, 859 F.3d 148, 152 (1st Cir. 

 

rights by artificially narrowing the scope of the investigation 

against Farak, we have held, in footnote 2, supra, that Kaczmarek 

is absolutely immune. 

Penate argues in his brief that these factual 

allegations were made in support of paragraph 433 of the complaint, 

which alleges that Kaczmarek failed to disclose exculpatory 

evidence to the DAs, including to the DA prosecuting Penate. And 

Kaczmarek admits in her reply brief that these allegations could 

properly be used to support the theory in paragraph 433. To the 

extent the facts are alleged for this purpose, we agree with Penate 

that these two factual allegations are well-pleaded and need not 

be disregarded as conclusory. See Ocasio-Hernández v. FortuñoBurset, 640 F.3d 1, 14 (1st Cir. 2011) (defining well-pleaded 

facts).
- 15 - 

2017) (lacking interlocutory jurisdiction because immunity 

depended on facts requiring further development). Penate's 

complaint alleges the facts necessary to evaluate Kaczmarek's 

defense; we are required to take those facts as true at this stage; 

and Kaczmarek, in any event, does not dispute them. The only 

question is whether, on those facts, Kaczmarek is entitled to 

absolute immunity and thus to dismissal of the complaint. 

Our review is de novo. Garnier v. Rodríguez, 506 F.3d 

22, 26 (1st Cir. 2007). We start with "[t]he presumption . . . 

that qualified rather than absolute immunity is sufficient." 

Burns v. Reed, 500 U.S. 478, 486 (1991). And Kaczmarek, as the 

"official seeking absolute immunity[,] bears the burden of showing 

that such immunity is justified." Id. at 486. That burden is a 

heavy one. See, e.g., Buckley, 509 U.S. at 269 ("[W]e have been 

'quite sparing' in recognizing absolute immunity for state actors 

. . . ." (quoting Forrester v. White, 484 U.S. 219, 224 (1988)). 

Kaczmarek has not satisfied it here, either on her first 

theory that she is entitled to absolute prosecutorial immunity 

because she prosecuted Farak or on her second theory that she 

should enjoy the absolute immunity afforded to certain government 

attorneys. We address these theories in turn. 

B. Absolute Prosecutorial Immunity 

The Supreme Court first recognized the absolute immunity 

of prosecutors from certain § 1983 claims in Imbler v. Pachtman, 
- 16 - 

424 U.S. 409 (1976). There, the Court held that prosecutors are 

absolutely immune in exercising the core prosecutorial functions 

of "initiating a prosecution and . . . presenting the State's 

case." Id. at 431. 

Following Imbler, the Court has used a "functional 

approach" to decide whether state officials are entitled to 

absolute immunity from particular § 1983 claims. Burns, 500 U.S. 

at 486. This approach looks to "the nature of the function 

performed, not the identity of the actor who performed it," 

Forrester, 484 U.S. at 229, nor to "the particular act" in 

isolation, Mireles v. Waco, 502 U.S. 9, 12 (1991) (per curiam) 

(citing Stump v. Sparkman, 435 U.S. 349, 356 (1978)). 

Applying this approach, the Supreme Court has recognized 

that several "functions of contemporary prosecutors are entitled 

to absolute immunity." Buckley, 509 U.S. at 269. These include: 

"appearing before a judge and presenting evidence in support of a 

motion for a search warrant," Burns, 500 U.S. at 491, and 

"prepar[ing] and filing . . . [a criminal] information and [a] 

motion for an arrest warrant," Kalina v. Fletcher, 522 U.S. 118, 

129 (1997). The basic "principle" of these cases is "that acts 

undertaken by a prosecutor in preparing for the initiation of 

judicial proceedings or for trial, and which occur in the course 

of his role as an advocate for the State, are entitled to the 

protections of absolute immunity." Buckley, 509 U.S. at 273. 
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But the Supreme Court has rejected claims to absolute 

prosecutorial immunity where the prosecutor's conduct lacked a 

"functional tie to [a] judicial process" initiated by the 

prosecutor. Id. at 277. So, absolute immunity does not protect 

prosecutors when they give advice to police during a criminal 

investigation, Burns, 500 U.S. at 495-96, fabricate evidence long 

before a grand jury has made an indictment, Buckley, 509 U.S. 275-

76, or make statements to the press in announcing an indictment, 

id. at 276-78. These functions have been deemed "administrative" 

or "investigative," and, in exercising them, "a prosecutor is in 

no different position than other executive officials," such as 

police, and "qualified immunity is the norm for them." Id. at 

278. 

All of these Supreme Court cases involved claims arising 

out of criminal proceedings which were initiated by the same 

officials who were seeking absolute prosecutorial immunity. But 

Kaczmarek was not Penate's prosecutor; 6 she rests her broad 

assertion of absolute prosecutorial immunity on her role as Farak's 

prosecutor. Kaczmarek's claim is thus a novel one, as neither the 

 6 Kaczmarek's agency, the AGO, had no control over 

Penate's prosecution and thus Kaczmarek cannot, and indeed does 

not, claim to have been his prosecutor. See Kulwicki v. Dawson, 

969 F.2d 1454, 1467 (3d Cir. 1992) (denying prosecutor lacking 

"official control over" a prosecution prosecutorial immunity based 

on that prosecution). Indeed, the AG, for whom Kaczmarek worked, 

admitted that it was not Penate's prosecutor but rather "was a 

non-party from which [Penate] . . . sought . . . discovery." 
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Supreme Court nor this court has ever extended absolute 

prosecutorial immunity to conduct by a prosecutor in a proceeding 

not initiated by that prosecutor or by an office that prosecutor 

supervises.7

Absolute immunity is not triggered here by the simple 

fact that the conduct alleged in the complaint occurred while 

Kaczmarek was pursuing the commonwealth's criminal charges against 

Farak. See Filler, 859 F.3d at 153 ("Importantly, absolute 

immunity does not necessarily apply to all actions that a 

prosecutor may take once the 'judicial phase' begins."); GuzmanRivera, 55 F.3d at 29 (observing that absolute prosecutorial 

immunity does not "extend[] to all conduct that facilitates the 

prosecutorial function"). As the Supreme Court has emphasized, 

"the actions of a prosecutor are not absolutely immune merely 

because they are performed by a prosecutor." Buckley, 509 U.S. 

at 273. Rather, under the functional approach, Kaczmarek's 

defense turns on the following question: was Kaczmarek functioning 

as Farak's prosecutor when she withheld evidence from Penate's 

proceeding? See id. at 277 (asking whether the prosecutor's 

 7 The Supreme Court held in Van de Kamp v. Goldstein, 555 

U.S. 335 (2009), that prosecutors were entitled to absolute 

immunity for supervising their office's compliance with 

constitutional disclosure requirements. Id. at 348. As Kaczmarek 

did not work in or otherwise have control over the office of the 

DA prosecuting Penate, her claim to absolute prosecutorial 

immunity does not come under the rubric of Van de Kamp. See id. 

at 345. 
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conduct had any "functional tie to the judicial process"); Burns, 

500 U.S. at 495 (asking whether "the prosecutor's actions are 

closely associated with the judicial process" the prosecutor 

initiated). 

Key facts alleged in the complaint answer that question 

in the negative. The most significant fact is that Kaczmarek 

turned over the mental health worksheets to Farak's defense. This 

shows that, when Kaczmarek orchestrated the withholding of that 

very same evidence in Penate's case, she did not do so because 

keeping the evidence under wraps was helpful to her prosecution of 

Farak. On the complaint's facts, we conclude jurors could find 

that Kaczmarek's decisions about disclosure of evidence in 

Penate's case were not made based on her role as Farak's 

prosecutor. The absence of this "functional tie" between 

Kaczmarek's prosecutorial duties and her conduct in Penate's case, 

if proven, would doom Kaczmarek's assertion of absolute 

prosecutorial immunity. Buckley, 509 U.S. at 277. 

The ties Kaczmarek points to do not show that she 

withheld evidence in Penate's case as part of her advocacy in 

Farak's case. Kaczmarek emphasizes that her involvement in 

Penate's case occurred "in the midst of her criminal prosecution" 

of Farak. But, as we have already explained, the functional 

approach and the principle that prosecutorial immunity is not 

coextensive with the judicial phase of the criminal process require 
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that determinations about immunity turn not on accidents of timing 

but on careful analyses of the functions being performed. 

Kaczmarek also stresses that her "obligations" to Penate 

"arose solely because of her . . . role as Farak's prosecutor." 

Kaczmarek possessed the evidence at issue because she was Farak's 

prosecutor, "but that connection is too tenuous" to show that 

Kaczmarek functioned as a prosecutor when she withheld the evidence 

from Penate's case. Lampton v. Diaz, 639 F.3d 223, 227 (5th Cir. 

2011); see also id. at 227-28 (denying immunity for prosecutor's 

disclosure of tax records acquired during prosecution to state 

ethics board); Yarris v. Cty. of Delaware, 465 F.3d 129, 137-38 

(3d Cir. 2006) (denying absolute prosecutorial immunity to 

prosecutors who withheld evidence in post-conviction proceedings 

assigned to other prosecutors, even though the prosecutors had 

acquired the evidence at issue through their roles as prosecutors 

in the initial criminal proceedings); Guzman-Rivera, 55 F.3d at 29 

("The prosecutorial nature of an act does not spread . . . like an 

inkblot, immunizing everything it touches."). 

Kaczmarek's final attempt to cast her function in 

Penate's case as entitled to prosecutorial immunity, based on Reid 

v. New Hampshire, 56 F.3d 332 (1st Cir. 1995), misses because it 

trains its sights on Kaczmarek's conduct rather than on her 

function. The prosecutors in Reid enjoyed absolute immunity from 

claims that they intentionally withheld evidence while trying the 
- 21 - 

plaintiff on criminal charges. Id. at 337; see also Campbell v.

Maine, 787 F.2d 776, 778 (1st Cir. 1986) (per curiam) (same). 

Kaczmarek argues that she is entitled to immunity just the same 

because, like the prosecutors in Reid, she "used her discretion to 

evaluate" the evidence at issue and to determine that the evidence 

was "irrelevant" to Penate.

But Reid explained that absolute immunity attaches "when 

a prosecutor evaluates evidence and interviews witnesses in 

preparation for trial," 56 F.3d at 337 (citing Buckley, 509 U.S. 

at 273), and that one aspect of this immunity-protected function 

is "determin[ing] what evidence . . . [i]s exculpatory and subject 

to disclosure" to the defense, id.; see also Warney v. Monroe Cty., 

587 F.3d 113, 125 (2d Cir. 2009) ("[T]he disclosure of [Brady] 

evidence to opposing counsel is an advocacy function."); Imbler, 

424 U.S. at 431 n.34 (analogizing withholding exculpatory evidence 

to a prosecutor's use of perjured testimony during trial). Reid's 

holding thus rested not on "the act itself" -- analyzing 

potentially exculpatory evidence -- but on "the nature and function 

of the act" -- analyzing evidence in preparation to present the 

state's case. Mireles, 502 U.S. at 13 (internal quotation marks 

omitted); see also Buckley, 509 U.S. at 276 n.7 (confirming that 

immunity for "obtaining, reviewing, and evaluating evidence" 

depends on whether those actions were taken in an "administrative" 

or prosecutorial capacity (quoting Imbler, 424 U.S. at 431 n.33)). 
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That police are afforded qualified immunity from Brady 

claims further illustrates that the function for which the evidence 

is analyzed, not the act of analyzing potentially exculpatory 

evidence, controls the type of immunity. See Drumgold v. 

Callahan, 707 F.3d 28, 38 (1st Cir. 2013) (denying claim of 

qualified immunity by police officer for suppression of evidence). 

Indeed, the operative allegations in Count IV of the complaint 

allege that Kaczmarek withheld Brady material, as a police officer 

might, by "concealing Brady material," from the court where Penate 

was tried and from Penate's prosecutor.

Finally, the functional tie present in Reid is absent 

here: we have already concluded that Kaczmarek's decisions to 

withhold evidence in Penate's case were not, on the facts alleged, 

an aspect of her preparation to present the state's case against 

Farak. In short, Kaczmarek does not enjoy absolute prosecutorial 

immunity from Penate's suit because of her role as Farak's 

prosecutor. 

C. Absolute Immunity of Government Attorneys 

The next issue is Kaczmarek's theory that she enjoys 

absolute immunity because she was a government attorney performing 

an advocacy function when she advised Foster on the AGO's responses 

to the Ballou subpoena and to the subsequent court order requiring 

disclosure of documents. 
- 23 - 

This theory of immunity is derived from Butz v. Economou, 

438 U.S. 478 (1978), which held that "agency officials" enjoy 

absolute immunity in "performing certain functions analogous to 

those of a prosecutor," including "initiat[ing] administrative 

proceedings" and "presenting evidence in an agency hearing." Id. 

at 515-16. Butz itself involved claims against, among others, a 

Department of Agriculture attorney who had brought an 

administrative enforcement proceeding against the plaintiff. Id. 

at 482. 

Kaczmarek cites to out-of-circuit cases extending Butz 

to officials appointed to initiate civil proceedings for the 

government or to defend the government in civil proceedings.8 See, 

e.g., Schrob v. Catterson, 948 F.2d 1402, 1413 (3d Cir. 1991) 

(initiating a civil forfeiture proceeding)); Murphy v. Morris, 849 

F.2d 1101, 1105 (8th Cir. 1988) (defending government in a civil 

suit); Barrett v. United States, 798 F.2d 565, 572-73 (2d Cir. 

1986) (same).9 She argues that these cases and Butz hold that 

 8 This circuit has not extended Butz to government 

attorneys outside the administrative context. We have granted 

absolute immunity to, for example, members of a state medical 

licensing board in initiating a licensure revocation proceeding, 

Wang v. N.H. Bd. of Registration in Med., 55 F.3d 698, 701 (1st 

Cir. 1995), and to officers at a state insurance bureau in deciding 

to settle a violation through consent agreement rather than 

administrative proceeding, Knowlton v. Shaw, 704 F.3d 1, 6 (1st 

Cir. 2013). 

9 Kaczmarek likens herself to state government attorneys 

granted immunity by the Second Circuit in Barrett for their 
- 24 - 

"government attorneys who are not formally designated as 

prosecutors are also entitled to absolute immunity when their 

function is intimately associated with the judicial process." 

That reading is undoubtedly too broad. Butz involved agency 

attorneys with assigned roles in a quasi-judicial administrative 

proceeding. And the out-of-circuit cases involved attorneys 

appointed to represent the government in initiating or defending 

a civil proceeding. No case has extended absolute immunity to a 

government attorney like Kaczmarek for merely assisting, behind 

the scenes, in a state's response to a court request for documents. 

And we do not believe that such an extension is "necessary to 

protect the judicial process." Burns, 500 U.S. at 485. 

But, even assuming that Butz immunity were as broad as 

Kaczmarek argues it is, her theory would fail on its own terms. 

The facts alleged in the complaint do not support it. See Odd v. 

Malone, 538 F.3d 202, 208 (3d Cir. 2008) (emphasizing the "factintensive nature" of the functional approach to absolute 

immunity). 

To recap the basic events, the subpoena duces tecum 

received by Ballou "command[ed] the production of all documents 

 

assignment to defend the state in a civil suit filed in state 

court. 798 F.2d at 573. But that holding does not encompass 

Kaczmarek's claim to immunity. As we have already explained, 

Kaczmarek did not represent the DA in the Penate prosecution. 

And, as we will explain, Kaczmarek was not the AGO's designee to 

respond to the discovery requests. 
- 25 - 

and photographs pertaining to the investigation of Sonja Farak and 

the Amherst Drug Lab." Later, the judge ordered Ballou to produce 

any previously undisclosed evidence in his file. Foster was the 

AGO attorney responsible for handling the AGO's answers to the 

subpoena and court order. She had conversations with Kaczmarek 

and others in the course of formulating these responses. 

As we read the core facts alleged in the complaint, in 

these conversations with Foster, Kaczmarek primarily functioned as 

a custodian of evidence. This is an administrative function not 

"analogous" to the advocacy of a prosecutor, Butz, 438 U.S. at 

515, nor otherwise intimately associated with the judicial 

process,10 see Odd, 538 F.3d at 213 (denying claim of absolute 

immunity for a "primarily administrative" function); see also, 

e.g., Knowlton v. Shaw, 704 F.3d 1, 5 (1st Cir. 2013) ("Absolute 

immunity . . . is not available to . . . officials whose actions 

are primarily administrative . . . ."); Perez v. Ellington, 421 

F.3d 1128, 1133 (10th Cir. 2005) ("Absolute immunity does not 

 10 Kaczmarek also argues, relying on Van de Kamp, that she 

is absolutely immune because she advised Foster, whom the district 

court found to be absolutely immune, see Penate, 2018 WL 6437077, 

at *14. Van de Kamp, however, granted immunity to supervisors of 

prosecutors and to the prosecutor's "colleagues" who shared an 

"intimate[] association with the judicial phase of the criminal 

process." See 555 U.S. at 345-46. Kaczmarek was not Foster's 

supervisor. And our conclusion that Kaczmarek could be found not 

to have shared such an association with the judicial phase of the 

criminal process distinguishes her from the hypothetical 

colleagues the Supreme Court deemed immune in Van de Kamp. 
- 26 - 

extend to actions 'that are primarily investigative or 

administrative in nature' . . . ." (quoting Pfeiffer v. Hartford 

Fire Ins. Co., 929 F.2d 1484, 1490 (10th Cir. 1991)). 

That Kaczmarek acted as an evidence custodian is 

consistent first of all with the AG's own description of its role 

in Penate's proceeding. The AGO represented to the state court 

evaluating Penate's motion for a new trial that the AG was "not 

the prosecutor" of Penate's case. Instead, the AG stated that, 

in responding to the subpoena and court order, it had been a 

"non-party from which the defendants . . . sought . . . 

discovery." "In that capacity," the AGO claimed to have acted "as 

any other non-party might." Our characterization of Kaczmarek's 

function follows from this admission by the AG that it was "not 

the prosecutor" but rather a non-party simply providing requested 

evidence. 

Other key facts alleged confirm this characterization as 

to Kaczmarek herself. Kaczmarek's role in the AG's Enterprise and 

Major Crimes Unit was to prosecute crimes. A different unit, the 

Appeals Division, where Foster worked, handled the AGO's responses 

to subpoenas. Kaczmarek, in other words, was involved in the 

response to the subpoena and court order only because she was the 

person familiar with the materials requested. The complaint thus 

alleges that Kaczmarek's primary role was to inform Foster about 
- 27 - 

the existence, or non-existence, of responsive documents among 

those materials. 

In performing this role, Kaczmarek "serv[ed] the same 

non-adversarial function as police officers . . . and other 

clerical state employees" able to identify and describe evidence 

in government possession. Yarris, 465 F.3d at 138 (holding that 

former prosecutors who stonewalled requests to test evidence acted 

not like prosecutors entitled to absolute immunity but as 

"custodian[s] of evidence"). This function, whether performed by 

a government lawyer like Kaczmarek or by a police officer, is an 

administrative one, not analogous to the advocacy of a prosecutor, 

nor otherwise closely associated with the judicial process. See 

id. at 137-38. 

The administrative nature of this role here is further 

apparent in the nature of the subpoena and order. The subpoena 

requested all relevant documents and the order any previously 

undisclosed documents. Informing Foster whether documents 

responsive to such explicit orders existed among the Farak 

materials did not require advocacy by Kaczmarek. In this, our 

view is consistent with Odd v. Malone, 538 F.3d at 213 (Hardiman, 

J.), which held that a prosecutor responsible for "informing the 

court about the status of a detained witness" was performing an 

administrative function. Id. at 213. There, too, the function's 

administrative nature was "especially" clear "in light of" the 
- 28 - 

fact that the court's order requesting the information was 

"explicit." Id. 

To the extent Kaczmarek did use discretion or legal 

knowledge in advising Foster, that does not change our conclusion 

that Kaczmarek's primary function was an administrative one not 

entitled to absolute government attorney immunity. As we 

explained in the previous section, it is the function for which 

evidence is evaluated, not the act of analyzing evidence itself 

which controls the type of immunity. And, here, the complaint 

alleges that Kaczmarek's primary function in analyzing the Farak 

materials was an administrative one -- to inform Foster whether 

those materials were responsive. 

III. 

The district court's denial of the motion to dismiss is 

affirmed.