10-818-cv

Kent v. Cardone



### UNITED STATES COURT OF AP PEALS FOR THE SECOND CIRCU IT



# SUM MARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED

ON ORAF T ER J

ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL R ULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL R ULE 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 day of January, two thousand eleven. th 

### 5 6 PRESENT: DENNIS JACOBS, 

### 7 Chief Judge, 

### 8 GUIDO CALABRESI, 

### 9 ROBERT D. SACK, 

### 10 Circuit Judges. 

### 11 12 - - - - - - - - - - - - - - - - - - - -X KEITH A. KENT , 

### 13 Plaintiff-Counter-Defendant

### 14 Appellee , 

### 15 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 - - - - - - - - - - - - - - - - - - - -X2 

### 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 DECREEDthat 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 presented3 

### 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. Fitzsimmons, 509 U.S. 259, 273 (1993). Whether an action is 

### 24 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 358,4 

### 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 conspired to present false evidence at criminal trial). 

### 8 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 Schloss v. Bouse, 876 F.2d 287 (2d Cir. 1989) , the 

### 19 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

performed in the clear absence of all jurisdiction. 

### 42 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 demanded5 

### 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 U.S. at 431 (holding prosecutors absolutely immune for 

### 27 28 initiating prosecutions and presenting evidence); accord 

### 29 Fitzsimmons, 509 U.S. at 274 n.5 (acknowledging that absolute immunity shields “a prosecutor’s decision to bring 

### 30 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 evidence to the grand jury); Hill v. City of New York, 45 

### 35 F.3d 653, 660-61 (2d Cir. 1995) (holding prosecutors and 

### 36 37 those working under their direction absolutely immune for malicious prosecution and for conduct before a grand jury); 

### 38 39 see also Zahrey v. Coffey, 221 F.3d 342, 347 (2d Cir. 2000) (noting parties’ agreement that absolute immunity shields 

### 40 prosecutor for presentation of “allegedly false testimony to 

### 41 the grand jury”). 

### 42 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 3-3.56 

### 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