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 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

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13 KEITH A. KENT, 

14 Plaintiff-Counter-Defendant15 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-Counter25 Claimants,

26

27 COUNTY OF ORLEANS,

28 Defendant.

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2

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
3

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,
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

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
5

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 non26 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
6

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