Goldstein v. City of Long Beach

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS LEE GOLDSTEIN, 

Plaintiff-Appellee,

v.

CITY OF LONG BEACH; COUNTY OF

LOS ANGELES; JOHN HENRY MILLER; No. 06-55537

WILLIAM COLLETE; LOGAN WREN;

and WILLIAM MACLYMAN,  D.C. No.

CV 04-09692-AHM

Defendants, OPINION

and

JOHN VAN DE KAMP and CURT

LIVESAY,

Defendants-Appellants.



Appeal from the United States District Court

for the Central District of California

A. Howard Matz, District Judge, Presiding

Argued and Submitted

March 5, 2007—Pasadena, California

Filed March 28, 2007

Before: Stephen Reinhardt and Robert R. Beezer,

Circuit Judges, and Thelton E. Henderson,* District Judge.

Opinion by Judge Henderson

*The Honorable Thelton E. Henderson, Senior United States District

Judge for the Northern District of California, sitting by designation.

3537

3540 GOLDSTEIN v. VAN DE KAMP

COUNSEL

Steven J. Renick, Manning & Marder, Kass, Ellrod, Ramirez

LLP, Los Angeles, California, for the defendants-appellants.

Ronald O. Kaye, David S. McLane, Marilyn E. Bednarski,

Kaye, McLane & Bednarski, LLP, Pasadena, California, for

the plaintiff-appellee.

OPINION

HENDERSON, District Judge:

In this case, we are asked to determine whether an elected

district attorney and his chief deputy are entitled to absolute

immunity from suit based on allegations that they failed to

develop policies and procedures, and failed to adequately

train and supervise their subordinates, to fulfill their constitu-

tional obligation of ensuring that information regarding jail-

house informants was shared among prosecutors in their

GOLDSTEIN v. VAN DE KAMP 3541

office. See Giglio v. United States, 405 U.S. 150, 154 (1972).

For the reasons discussed in this opinion, we hold that they

are not, and we therefore affirm the opinion of the district

court.

I. Background

After serving twenty-four years in prison, Plaintiff-

Appellee Thomas Lee Goldstein was released on April 2,

2004, following this Court’s affirmance of the district court’s

order granting Goldstein’s petition for habeas relief. Goldstein

has now filed a complaint seeking damages under 42 U.S.C.

§ 1983 based on his wrongful conviction for murder.

Although he has sued several individuals and entities, includ-

ing the City of Long Beach, the County of Los Angeles, and

four officers of the Long Beach Police Department, only his

claims against Defendants-Appellants John Van De Kamp

and Curt Livesay are at issue in this appeal.1 Van De Kamp

was the Los Angeles County District Attorney at the time

Goldstein was prosecuted and convicted, and Livesay was his

chief deputy.

The claims relevant to this appeal stem from the testimony

at Goldstein’s 1980 criminal trial of Edward Floyd Fink, a

jailhouse informant. Fink testified that Goldstein confessed

the murder to him while both were being detained in the Long

Beach City Jail. Goldstein alleges that this testimony was

false, as was Fink’s testimony that he was not receiving any

benefits for testifying against Goldstein and had never

received any benefits for assisting law enforcement in the

past. Fink had, in fact, been acting as an informant for the

Long Beach Police Department for several years and had

received multiple reduced sentences in return. Although other

1

A different panel of this Court affirmed the district court’s denial of a

motion to dismiss brought by the County of Los Angeles. Goldstein v.

City of Long Beach, 2006 WL 3206148, Case No. 05-56243 (9th Cir. Nov.

6, 2006).

3542 GOLDSTEIN v. VAN DE KAMP

deputy district attorneys in the Los Angeles County District

Attorney’s Office were aware of the benefits provided to Fink

in exchange for his testimony against Goldstein, this critical

impeachment evidence was never shared with the deputy dis-

trict attorneys prosecuting Goldstein’s case, allegedly because

no system of sharing such information existed in the District

Attorney’s Office at the time and because deputy district

attorneys were not adequately trained or supervised to share

such information. As a result, evidence that could have been

used to impeach Fink was not shared with Goldstein’s defense

counsel, in violation of Brady v. Maryland, 373 U.S. 83, 87

(1963).

Several years prior to Goldstein’s arrest and conviction, the

Supreme Court explained that prosecutors’ offices have a con-

stitutional obligation to establish “procedures and regulations

. . . to insure communication of all relevant information on

each case [including promises made to informants in

exchange for testimony in that case] to every lawyer who

deals with it.” Giglio, 405 U.S. at 154. Thus, Goldstein

alleges that Van De Kamp and Livesay are liable under

§ 1983 because, as administrators of the Los Angeles County

District Attorney’s Office, they violated his constitutional

rights by purposefully or with deliberate indifference failing

to create a system that would satisfy this obligation. Goldstein

further alleges that Van De Kamp and Livesay violated his

constitutional rights by failing to adequately train and super-

vise deputy district attorneys to ensure that they shared infor-

mation regarding jailhouse informants with their colleagues.

Van De Kamp and Livesay sought dismissal of the claims

against them, under Federal Rule of Civil Procedure 12(b)(6),

based on an assertion of absolute prosecutorial immunity. The

district court denied their motion on March 8, 2006, finding

that Van De Kamp and Livesay’s alleged conduct was admin-

istrative rather than prosecutorial and, therefore, not entitled

to the protections of absolute immunity. Van De Kamp and

GOLDSTEIN v. VAN DE KAMP 3543

Livesay filed a timely notice of interlocutory appeal on April

5, 2006.

II. Jurisdiction and Standard of Review

Although we do not generally have jurisdiction over inter-

locutory appeals of denials of motions to dismiss, we do have

jurisdiction over such appeals where the district court denied

a claim of absolute immunity. Mitchell v. Forsyth, 472 U.S.

511, 525 (1985). Such denials are immediately appealable

because “the essence of absolute immunity is its possessor’s

entitlement not to have to answer for his conduct in a civil

damages action,” an entitlement that “is effectively lost if a

case is erroneously permitted to go to trial.” Id. at 525-26.

Whether a public official is entitled to absolute immunity

is a question of law that is reviewed de novo. Botello v. Gam-

mick, 413 F.3d 971, 975 (9th Cir. 2005), cert. denied, 126

S. Ct. 1419 (2006). Because this appeal stems from a ruling

on a motion to dismiss for failure to state a claim, we assume

all factual allegations in the complaint to be true. Id.

In addition, “[t]o decide whether absolute immunity

applies, we assume without deciding that [Goldstein] has

alleged a deprivation of a constitutional right under § 1983.”

Genzler v. Longanbach, 410 F.3d 630, 643-44 (9th Cir. 2005),

cert. denied, 126 S. Ct. 737 (2005) (citing Buckley v. Fitzsim-

mons, 509 U.S. 259, 261 (1993)). Whether the alleged con-

duct is sufficient to state a claim for liability under § 1983 is

therefore not before the Court at this time.

III. Discussion

Courts have recognized two types of immunity from suit

under 42 U.S.C. § 1983: qualified immunity and absolute

immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993).

Only absolute immunity is at issue in this appeal, as Van De

Kamp and Livesay failed to make an alternative argument in

3544 GOLDSTEIN v. VAN DE KAMP

the district court that the claims against them should be dis-

missed based on qualified immunity.

[1] As its name implies, absolute immunity is an absolute

bar to liability. Qualified immunity, on the other hand, shields

officials from suits for damages only when their alleged con-

duct either does not violate a constitutional right or violates

a constitutional right that was not “clearly established,” mean-

ing that a reasonable person in the official’s position would

not have known “his conduct was unlawful in the situation he

confronted.” Saucier v. Katz, 533 U.S. 194, 201-02 (2001).

“The presumption is that qualified rather than absolute

immunity is sufficient to protect government officials in the

exercise of their duties.” Burns v. Reed, 500 U.S. 478, 486-87

(1991). The official seeking absolute immunity therefore

bears the burden of demonstrating that it is warranted, and the

Supreme Court has been “quite sparing in its recognition of

claims to absolute official immunity.” Forrester v. White, 484

U.S. 219, 224 (1988).

[2] A prosecutor is entitled to absolute immunity under

§ 1983 for conduct that is “intimately associated with the judi-

cial phase of the criminal process,” Imbler v. Pachtman, 424

U.S. 409, 430 (1976), and “occur[s] in the course of his [or

her] role as an advocate for the State,” Buckley, 509 U.S. at

273. However, conduct is not shielded by absolute immunity

simply because it is performed by a prosecutor. Id. To the

contrary, a prosecutor is entitled only to qualified immunity

“if he or she is performing investigatory or administrative

functions, or is essentially functioning as a police officer or

detective.” Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.

2003) (citing Buckley, 509 U.S. at 273). Thus, when determin-

ing whether absolute immunity applies, courts must examine

“the nature of the function performed, not the identity of the

actor who performed it.” Forrester, 484 U.S. at 229.

Applying this functional analysis, the Supreme Court has

held that prosecutors are absolutely immune from § 1983 lia-

GOLDSTEIN v. VAN DE KAMP 3545

bility for decisions to initiate a particular prosecution, to pre-

sent knowingly false testimony at trial, and to suppress excul-

patory evidence. Imbler, 424 U.S. at 431 & n.34. Prosecutors

also enjoy absolute immunity for decisions not to prosecute

particular cases, Roe v. City & County of San Francisco, 109

F.3d 578, 583-84 (9th Cir. 1997), and for gathering evidence

to present to the trier of fact, as opposed to gathering evidence

to determine whether probable cause exists to arrest, Broam,

320 F.3d at 1033.

On the other hand, prosecutors do not have absolute immu-

nity “for advising police officers during the investigative

phase of a criminal case, performing acts which are generally

considered functions of the police, acting prior to having

probable cause to arrest, or making statements to the public

concerning criminal proceedings.” Botello, 413 F.3d at 976-

77 (citing Burns, 500 U.S. at 493, and Buckley, 509 U.S. at

274-78). Nor do government officials have absolute immunity

“for conduct involving termination, demotion and treatment

of employees.” Id. at 976 (citing Forrester, 484 U.S. at 228-

30, and Meek v. County of Riverside, 183 F.3d 962, 967 (9th

Cir. 1999)). For example, we have held that absolute immu-

nity does not apply to a District Attorney’s decisions to

demote or fail to promote a deputy attorney, to reassign the

deputy to a different department, or to bar the deputy from

prosecuting any future murder cases. Ceballos v. Garcetti,

361 F.3d 1168, 1184 (9th Cir. 2004), rev’d on other grounds,

126 S. Ct. 1951 (2006). Unlike the removal of a deputy attor-

ney from a particular case, which falls “within the District

Attorney’s prosecutorial function” because it is “intimately

associated with the judicial phase of the criminal process,” we

determined that these challenged actions were “personnel

decisions” falling “squarely within the District Attorney’s

administrative function. Even the decision not to reassign

Ceballos to future murder cases was a personnel decision, and

was unrelated to any particular prosecution or ongoing judi-

cial proceeding.” Id. (citing Broam, 320 F.3d at 1028).

3546 GOLDSTEIN v. VAN DE KAMP

[3] Neither the Supreme Court nor this Court has consid-

ered whether claims regarding failure to train, failure to super-

vise, or failure to develop an office-wide policy regarding a

constitutional obligation, like the one set forth in Giglio, are

subject to absolute immunity. The closest we have come was

in Ybarra v. Reno Thunderbird Mobile Home Village, 723

F.2d 675 (9th Cir. 1984), a case involving allegations that a

supervising district attorney was “liable under § 1983 for fail-

ure to train his subordinate . . . to preserve exculpatory evi-

dence, or in the alternative, for permitting a policy of not

preserving exculpatory evidence to exist in the District Attor-

ney’s Office.” Id. at 680. We held that the district attorney

would enjoy absolute prosecutorial immunity for any allega-

tions based on his direct involvement in the plaintiff’s case.

Id. However, we did not reach the question of whether abso-

lute immunity would similarly protect the district attorney on

the supervisory claim or on the claim that he failed to develop

an appropriate policy because we concluded that the evidence

“fail[ed] to give rise to any inference” that the district attorney

did not adequately train or supervise his subordinates, or that

he failed to develop an appropriate policy of preserving evi-

dence. Id. at 680-81.

We also considered supervisory liability of a district attor-

ney in Genzler, 410 F.3d 630. In that case, we held that, like

prosecuting attorneys with direct responsibility for a case,

supervisory defendants are entitled to absolute immunity for

“conduct closely related to prosecutorial decisions in the trial

phase of [the plaintiff’s] case,” such as a claim “that the

supervisory defendants knew that [the prosecuting attorney]

had granted [a witness] immunity in exchange for perjured

testimony favorable to the prosecution,” or a claim “that the

supervisory defendants were aware of and condoned a ploy to

use [a witness’s] perjured testimony to force the recusal of

[the plaintiff’s] counsel of choice.” Id. at 644.

However, unlike the plaintiff in Genzler, Goldstein does

not contend that Van De Kamp and Livesay are liable because

GOLDSTEIN v. VAN DE KAMP 3547

they knew about, condoned, or directed any specific trial deci-

sions made by the deputy district attorneys prosecuting Gold-

stein’s criminal case. Goldstein does not, for instance, assert

that Van De Kamp and Livesay knew that Fink had been

granted immunity for perjured testimony in Goldstein’s par-

ticular case, or that they condoned withholding such informa-

tion from Goldstein’s criminal defense attorney. Instead,

Goldstein rests his theory of liability on Van De Kamp and

Livesay’s alleged failure to develop a policy of sharing infor-

mation regarding jailhouse informants within the District

Attorney’s Office and on their alleged failure to provide ade-

quate training and supervision on this issue.

[4] Van De Kamp and Goldstein are correct that our hold-

ing in Roe, 109 F.3d 578, establishes that absolute immunity

protects not only decisions made during an individual prose-

cution but may also apply to a policy decision. However, they

reach too broadly in urging us to apply Roe to this case. Roe

concerned challenges to a policy not to prosecute cases with-

out corroborating evidence where a particular police officer

was the sole witness to the alleged offense. Id. at 582. We

held that a decision not to prosecute was intimately associated

with the judicial phase of the criminal process and, therefore,

entitled to absolute immunity, and we agreed with the Court

of Appeals for the District of Columbia Circuit that “there is

‘no meaningful distinction between a decision on prosecution

in a single instance and decisions on prosecutions formulated

as a policy for general application.’ ” Id. at 583 (quoting

Haynesworth v. Miller, 820 F.2d 1245, 1269 (D.C. Cir.

1987)).

[5] The determinative factor in Roe was that the challenged

policy involved the discretionary decision of whether Roe was

a credible enough witness so that prosecutors could “prose-

cute his cases without corroborating evidence in good con-

science or with a reasonable expectation of winning a

conviction. . . . This kind of witness evaluation falls entirely

within a prosecutor’s judicial function regardless of whether

3548 GOLDSTEIN v. VAN DE KAMP

one case or a line of cases is at issue.” Id. at 584. Similarly,

the challenged policy in Haynesworth also related to an

alleged policy regarding which cases to prosecute: “Appel-

lants aver that they were victimized by a policy of retaliatory

prosecution — a practice of pursuing criminal charges against

individuals who have endured wrongful arrests, solely

because they refuse to waive civil suits against the arresting

officers.” Haynesworth, 820 F.2d at 1247. Thus, while Roe

and Haynesworth demonstrate that a policy decision may be

protected by absolute immunity, the critical factor remains the

nature of the challenged policy and whether it falls “within a

prosecutor’s judicial function” or, instead, is part of a prose-

cutor’s exercise of administrative or investigative functions.

Roe, 109 F.3d at 584.

[6] In this case, Van De Kamp and Livesay contend that the

challenged conduct was prosecutorial in function even if it

may have been administrative in form. We disagree. In the

context of determining whether absolute immunity applies,

“prosecutorial” refers only to conduct that is “intimately asso-

ciated with the judicial phase of the criminal process.” Imbler,

424 U.S. at 430. Thus, an act is not “prosecutorial” simply

because it has some connection with the judicial process or

may have some impact at the trial level. Were that the rule,

then prosecutors would be absolutely immune from any suit

because all actions taken by prosecutors arguably have some

connection to the judicial process — even those, such as per-

sonnel decisions, that we have explicitly held fall outside the

protections of absolute immunity. E.g., Ceballos, 361 F.3d at

1184. As the Supreme Court has cautioned, “[a]lmost any

action by a prosecutor, including his or her direct participation

in a purely investigative activity, could be said to be in some

way related to the ultimate decision whether to prosecute, but

we have never indicated that absolute immunity is that expan-

sive.” Burns, 500 U.S. at 495.

[7] While it may be possible for an act to be prosecutorial

in function but administrative in form, we need not decide

GOLDSTEIN v. VAN DE KAMP 3549

whether such conduct would be entitled to absolute immunity

because we conclude that Goldstein’s allegations are adminis-

trative and not prosecutorial in function.2 Van De Kamp and

Livesay correctly argue that the specific duty to share infor-

mation regarding jailhouse informants arose only because of

their roles as prosecutors. However, although the challenged

conduct may thus be “to some degree related to trial prepara-

tion,” Van De Kamp and Livesay have failed to demonstrate

the required “close association . . . [with] the judicial phase

of [Goldstein’s] criminal trial,” Genzler, 410 F.3d at 643, or

to clearly established prosecutorial functions such as deciding

whether to prosecute a particular case. See also Burns, 500

U.S. at 495 (requiring courts to “inquire whether the prosecu-

tor’s actions are closely associated with the judicial process”);

Imbler, 424 U.S. at 430 (requiring that the conduct be “inti-

mately associated with the judicial phase of the criminal pro-

cess”). Administrative work cannot be “retroactively

transform[ed]” into the prosecutorial simply because “the evi-

dence this work produced” might affect whether a prosecutor

decides to bring a case or, if a case is brought, how the evi-

dence is presented at trial. Buckley, 509 U.S. at 275-76. The

allegations against Van De Kamp and Livesay, which involve

2

We note that the Courts of Appeals for the Second and Third Circuits

reached similar conclusions, albeit in a different context, in Walker v. City

of New York, 974 F.2d 293 (2d Cir. 1992) and Carter v. City of Philadel-

phia, 181 F.3d 339 (3d Cir. 1999). Both cases involved challenges to a

municipality’s liability, which in turn involved questions of whether the

alleged conduct was prosecutorial or administrative in function. The Sec-

ond Circuit held that allegations regarding a “decision not to supervise or

train [assistant district attorneys] on Brady and perjury issues” raised chal-

lenges to the district attorney’s “acts as the manager of the district attor-

ney’s office” rather than to the district attorney’s actions “ ‘in a quasi-

judicial capacity.’ ” Walker, 974 F.2d at 301 (quoting Baez v. Hennessy,

853 F.2d 73, 77 (2d Cir. 1988)). Similarly, the Third Circuit held that

“policies relating to training, supervision and discipline” involved “not

prosecutorial, but administrative” functions. Carter, 181 F.3d at 353; see

also id. at 355-56 (declining to apply absolute prosecutorial immunity

because the challenged conduct was “administrative, rather than prosecu-

torial”).

3550 GOLDSTEIN v. VAN DE KAMP

their failure to promulgate policies regarding the sharing of

information relating to informants and their failure to ade-

quately train and supervise deputy district attorneys on that

subject, bear a close connection only to how the District

Attorney’s Office was managed, not to whether or how to

prosecute a particular case or even a particular category of

cases.3 Consequently, the challenged conduct is not prosecu-

torial in function and does not warrant the protections of abso-

lute immunity.

IV. Conclusion

For the above reasons, we hold that the district court cor-

rectly determined that Goldstein’s allegations against Van De

Kamp and Livesay describe conduct in furtherance of an

administrative rather than prosecutorial function. Van De

Kamp and Livesay have therefore failed to meet their burden

of demonstrating that the allegations against them are so “inti-

mately associated with the judicial phase of the criminal pro-

cess” that absolute immunity is warranted. Imbler, 424 U.S.

at 430. Accordingly, the decision of the district court is

AFFIRMED.

3

Thus, we need not and do not decide whether a policy decision regard-

ing how to prosecute a particular category of cases would be protected by

absolute immunity.