Renata Singleton v. Leon Cannizzaro, Jr., e

Case: 19-30197 Document: 00515390634 Page: 1 Date Filed: 04/21/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

April 21, 2020

No. 19-30197

Lyle W. Cayce

Clerk

RENATA SINGLETON; MARC MITCHELL; LAZONIA BAHAM; TIFFANY

LACROIX; FAYONA BAILEY; SILENCE IS VIOLENCE; JANE DOE; JOHN

ROE,

Plaintiffs - Appellees

v.

LEON A. CANNIZZARO, JR., in his official capacity as District Attorney of

Orleans Parish and in his individual capacity; DAVID PIPES; IAIN DOVER;

JASON NAPOLI; ARTHUR MITCHELL; TIFFANY TUCKER; MICHAEL

TRUMMEL; INGA PETROVICH; LAURA RODRIGUE; MATTHEW

HAMILTON; GRAYMOND MARTIN; SARAH DAWKINS,

Defendants - Appellants

Appeal from the United States District Court for

the Eastern District of Louisiana

Before ELROD, SOUTHWICK, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

This is a case about prosecutorial immunity. The Orleans Parish District

Attorney and several assistant district attorneys (“Defendants”) appeal the

district court’s denial of absolute immunity on claims arising from their use of

fake “subpoenas.” They also appeal the district court’s denial of their motion

to dismiss several of Plaintiffs’ claims. We AFFIRM in part and DISMISS in

part.

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Background

Plaintiffs allege that for years, prosecutors at the Orleans Parish District

Attorney’s Office (the “Office”), under the direction of District Attorney Leon

Cannizzaro, used fake “subpoenas” to pressure crime victims and witnesses to

meet with them. These documents were labeled “SUBPOENA” and were

marked with the Office’s official seal. They directed recipients “to appear

before the District Attorney for the Parish of Orleans” and warned that “A

FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY

THIS NOTICE.” The Office’s use of the fake subpoenas violated Louisiana law,

which requires prosecutors to channel proposed subpoenas through a court.

See LA. CODE CRIM. PROC. ANN. art. 66. 1

A brief summary of each relevant Plaintiff’s 2 experience with the fake

subpoenas is in order. Plaintiff Renata Singleton is a domestic violence victim

who refused to speak with prosecutors about a domestic incident. She alleges

that an investigator from the Office then delivered two fake subpoenas to her

home. The fake subpoenas demanded that she appear at the Office for

questioning. Singleton did not comply.

1 Article 66 provides:

Upon written motion of the attorney general or district attorney setting forth

reasonable grounds therefor, the court may order the clerk to issue subpoenas

directed to the persons named in the motion, ordering them to appear at a time

and place designated in the order for questioning by the attorney general or

district attorney respectively, concerning any offense under investigation by

him.

Id.

2 In addition to the individual Plaintiffs who received fake subpoenas, Plaintiff Silence Is

Violence (“SIV”) also brings subpoena-related claims. SIV is a nonprofit victim advocacy

organization that alleges that it diverted resources to protecting crime victims from

Defendants’ “coercive tactics.” This case also involves other Plaintiffs whose claims are not

relevant to this appeal.

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Plaintiff Lazonia Baham’s daughter’s boyfriend was murdered. The

Office charged a suspect with committing the murder. Baham spoke at her

home and over the telephone with two investigators from the Office about the

murder. One of the investigators allegedly pressured Baham to provide

testimony that contradicted her memory of the events. In the following

months, Baham received several fake subpoenas demanding that she appear

for private meetings at the Office. Baham refused to comply. A Defendant

assistant district attorney (“ADA”) then applied for a material witness warrant

based on Baham’s refusal to meet with the Office. Baham was jailed for over

a week as a result. She has since testified twice in pretrial proceedings in the

case, apparently pursuant to lawful subpoenas. The case has not yet gone to

trial.

Plaintiff Jane Doe is a victim of child molestation and child

pornography. While the criminal case against the suspect was pending, a

Defendant ADA and an investigator delivered a fake subpoena to Doe’s home

demanding that she appear for questioning at the Office. The ADA threatened

to seek Doe’s arrest if she did not comply. Due to her fear of being jailed, Doe

met privately with the ADA at the Office. The defendant in the related

criminal case entered a guilty plea fifteen months after Doe received the fake

subpoena.

Plaintiffs Fayona Bailey and Tiffany LaCroix were both potential

witnesses in two different murder cases. They each received a fraudulent

subpoena demanding a private meeting at the Office prior to trial. Both Bailey

and LaCroix retained counsel, who moved to quash the fake subpoenas. In

response to the motions to quash, prosecutors withdrew the subpoenas.

Neither Bailey nor LaCroix was ever called to testify.

Plaintiffs sued Defendants in federal court, asserting various federal

constitutional claims for monetary and injunctive relief against the assistant

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district attorneys and Cannizzaro in his individual capacity (collectively,

“Individual Defendants”), and against Cannizzaro in his official capacity.

Plaintiffs also asserted individual- and official-capacity claims under

Louisiana state law for abuse of process (Count VIII) and fraud (Count IX).

Defendants moved to dismiss. They contended that absolute immunity

barred each of Plaintiffs’ damages claims against Individual Defendants. They

asserted that five of those same claims should also be dismissed based on

qualified immunity. Finally, they argued that all of Plaintiffs’ official-capacity

claims should be dismissed for failure to state a claim on which relief could be

granted.

The district court granted absolute or qualified immunity for Individual

Defendants on all but two of Plaintiffs’ federal individual-capacity damages

claims. 3 It later granted qualified immunity on the two remaining federal

individual-capacity claims for monetary damages that it allowed to proceed.

As relevant here, the district court denied absolute immunity for Individual

Defendants only with respect to Plaintiffs’ claims arising from Individual

Defendants’ creation and use of the fake subpoenas. The court reasoned that

absolute immunity did not cover Individual Defendants’ “ultra vires conduct,”

which was not “intimately associated with the judicial phase of the criminal

process” because Individual Defendants had “side-stepped the judicial process”

and “operated outside of the process legally required by the Louisiana Code of

3Absolute and qualified immunity protect only individuals from claims for damages; they do

not bar official-capacity claims or claims for injunctive relief. See Burge v. Par. of St.

Tammany, 187 F.3d 452, 466 (5th Cir. 1999) (“The rule in this circuit is that a Louisiana

district attorney, sued in his or her official capacity, is a local government official who is not

entitled to Eleventh Amendment immunity.”); Chrissy F. by Medley v. Miss. Dep’t of Pub.

Welfare, 925 F.2d 844, 849 (5th Cir. 1991) (“Neither absolute nor qualified personal immunity

extends to suits for injunctive or declaratory relief under § 1983.”). Thus, Plaintiffs’ claims

(1) for damages and injunctive relief against Cannizzaro in his official capacity and

(2) against Individual Defendants for injunctive relief remain.

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Criminal Procedure.” The district court also granted in part and denied in part

Defendants’ motion to dismiss the remaining claims for failure to state a claim

on which relief could be granted. Defendants appealed.

Jurisdiction & Standard of Review

The district court had federal question jurisdiction over Plaintiffs’

federal claims. 28 U.S.C. § 1331. It had supplemental jurisdiction over

Plaintiffs’ state-law claims. 28 U.S.C. § 1367.

We have jurisdiction over Defendants’ interlocutory appeal from the

district court’s denial of absolute immunity. Bosarge v. Miss. Bureau of

Narcotics, 796 F.3d 435, 438 (5th Cir. 2015). But as discussed in Section III.B.

infra, we lack jurisdiction over Defendants’ appeal of the district court’s rulings

on the merits of Plaintiffs’ claims.

We review a district court’s denial of a motion to dismiss de novo. Loupe

v. O’Bannon, 824 F.3d 534, 536 (5th Cir. 2016). “In determining immunity, we

accept the allegations of [the plaintiffs’] complaint as true.” Id. (quoting Kalina

v. Fletcher, 522 U.S. 118, 122 (1997)).

Discussion

Individual Defendants argue that they are absolutely immune from

Plaintiffs’ subpoena-related claims. They also ask us to reverse the district

court’s denial of their motion to dismiss Plaintiffs’ remaining claims on the

merits. We conclude that (1) at this early, motion to dismiss stage, Individual

Defendants are not entitled to absolute immunity for Plaintiffs’ subpoena-

related state-law claims and (2) we lack jurisdiction to consider the merits of

Plaintiffs’ claims.

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Absolute Immunity

Individual Defendants first claim that they are absolutely immune from

Plaintiffs’ claims arising from the use of the fake subpoenas. 4 Although they

may yet be able to prevail on this claim, we disagree with their argument at

this stage of the case.

1. Overview of Absolute Prosecutorial Immunity for § 1983

Claims

The Supreme Court extended absolute immunity for § 1983 claims to

state prosecutors in Imbler v. Pachtman, 424 U.S. 409 (1976). In that case, a

criminal defendant whose conviction had been overturned sued the prosecutor,

several police officers, and a fingerprint expert, alleging “a conspiracy among

them unlawfully to charge and convict him.” Id. at 415–16. But the Court

concluded that state prosecutors are absolutely immune from § 1983 damages

claims based on activities “intimately associated with the judicial phase of the

criminal process.” Id. at 430. Thus, the Court held that a state prosecutor who

acts “within the scope of his duties in initiating and pursuing a criminal

prosecution” is absolutely immune from § 1983 claims for violating a

“defendant’s constitutional rights.” Id. at 410.

In discussing absolute immunity, “[t]he Supreme Court has made clear

that ‘it is the interest in protecting the proper functioning of the office, rather

than the interest in protecting its occupant, that is of primary importance.’”

Loupe, 824 F.3d at 538 (quoting Kalina, 522 U.S. at 125). “Thus, ‘the actions

of a prosecutor are not absolutely immune merely because they are performed

4 The only remaining claims that implicate absolute immunity are Plaintiffs’ state-law

claims. Louisiana law tracks federal law on absolute prosecutorial immunity. See Knapper

v. Connick, 681 So. 2d 944, 947, 950 (La. 1996) (“[W]e have harmonized our own state

immunity rules with federal immunity principles in the past”); accord Tickle v. Ballay, 259

So. 3d 435, 438–39 (La. Ct. App. 2018).

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by a prosecutor.’” Loupe, 824 F.3d at 538 (quoting Buckley v. Fitzsimmons, 509

U.S. 259, 273 (1993)).

Instead, the Supreme Court has taken a “functional approach” to

absolute immunity that “emphasize[s] that the official seeking absolute

immunity bears the burden of showing that such immunity is justified for the

function in question.” Burns v. Reed, 500 U.S. 478, 486 (1991). More

specifically, the Court distinguishes between (1) actions taken “in preparing

for the initiation of judicial proceedings or for trial, and which occur in the

course of [the prosecutor’s] role as an advocate for the State,” and

(2) “administrative duties and those investigatory functions that do not relate

to an advocate’s preparation for the initiation of a prosecution or for judicial

proceedings.” Buckley, 509 U.S. at 273.

In Buckley, the petitioner sued “prosecutors for allegedly fabricating

evidence during the preliminary investigation of a crime and making false

statements at a press conference announcing the return of an indictment.” Id.

at 261. The Supreme Court held that the prosecutors were not absolutely

immune for allegedly fabricating evidence because they lacked “probable cause

to arrest [the] petitioner or initiate judicial proceedings” at the time of the

alleged fabrication. Id. at 274. Thus, the prosecutors’ “mission at that time

was entirely investigative in character.” Id. Importantly, however, the Court

also recognized that “a determination of probable cause does not guarantee a

prosecutor absolute immunity from liability for all actions taken afterwards.

Even after that determination, . . . a prosecutor may engage in ‘police

investigative work’ that is entitled to only qualified immunity.” Id. at 274 n.5;

see also id. at 276 (“When the functions of prosecutors and detectives are the

same, . . . the immunity that protects them is also the same.”).

We have adhered to this functional approach to absolute immunity. We

have held that conduct protected by absolute immunity “is not limited ‘only to

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the act of initiati[ng judicial proceedings] itself and to conduct occurring in the

courtroom,’ but instead includes all actions ‘which occur in the course of [the

prosecutor’s] role as an advocate of the State.’” Cousin v. Small, 325 F.3d 627,

632 (5th Cir. 2003) (per curiam) (quoting Buckley, 509 U.S. at 272–73). Thus,

prosecutors are absolutely immune even for “[w]ilful or malicious prosecutorial

misconduct . . . if it occurs in the exercise of their advocatory function.” Cousin,

325 F.3d at 635. But by the same token, “state prosecutors are not entitled to

absolute immunity when they perform functions other than their quasi-judicial

functions of ‘initiating prosecutions and presenting the State’s case.’” Marrero

v. City of Hialeah, 625 F.2d 499, 507 (5th Cir. 1980) (quoting Imbler, 424 U.S.

at 431).

The policy underlying absolute prosecutorial immunity is twofold. First,

“the ‘special nature’ of the responsibilities of those engaged in the judicial

process requires that such persons be accorded absolute immunity when they

participate in that process.” Marrero, 625 F.2d at 507 (quoting Butz v.

Economou, 438 U.S. 478, 511 (1978)); see also Van de Kamp v. Goldstein, 555

U.S. 335, 342 (2009) (noting that “public trust” would suffer if prosecutors were

thinking about their own liability in making prosecutorial decisions). This is

relevant because

The prosecutor’s immunity is derived from the absolute immunity

accorded judges and grand jurors, an immunity necessitated by the

concern that these actors in the judicial process required by law to

make important decisions regarding the initiation, conduct, and

merit of controversies which often excite “the deepest feelings” of

the parties would be intimidated in the exercise of their discretion

by the fear of retaliatory lawsuits brought by angry defendants. A

prosecutor’s fear of liability could, in a variety of ways, seriously

undermine the criminal justice system’s goal of accurately

determining the guilt or innocence of defendants.

Marrero, 625 F.2d at 507 (citation omitted) (quoting Butz, 438 U.S. at 509).

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But “when a prosecutor acts outside his quasi-judicial role, he is not

making decisions comparable to those of a judge or grand juror. Thus,

subjecting him to liability for such decisions will not interfere to the same

degree with the effective functioning of the criminal judicial system.” Marrero,

625 F.2d at 508; see also Van de Kamp, 555 U.S. at 343 (“We have held that

absolute immunity does not apply when a prosecutor gives advice to police

during a criminal investigation, . . . when the prosecutor makes statements to

the press, . . . or when a prosecutor acts as a complaining witness in support of

a warrant application.”). So “[o]nly discretion that is quasi-judicial in nature

requires absolute insulation from suit because only such discretion is so crucial

to the effectiveness of the truth-finding process to outweigh the countervailing

policy that government officials should be subject to suit for violations of civil

rights.” Id. For this reason, “when a prosecutor makes an investigative

decision” comparable to that of a police officer—such as whether to order a

search and seizure—the prosecutor is not entitled to absolute immunity. Id.

Instead, he is given the same immunity a police officer would have: qualified

immunity. Id.

“The second reason justifying absolute immunity for prosecutors

engaged in quasi-judicial activities is that ‘the safeguards built into the judicial

system tend to reduce the need for private damage actions as a means of

controlling unconstitutional conduct.’” Marrero, 625 F.2d at 509 (quoting Butz,

438 U.S. at 512). But “when a prosecutor steps outside the confines of the

judicial setting, the checks and safeguards inherent in the judicial process do

not accompany him, and thus there is greater need for private actions to curb

prosecutorial abuse and to compensate for abuse that does occur.” Marrero,

625 F.2d at 509.

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2. Whether Individual Defendants Are Entitled to Absolute

Immunity

Plaintiffs allege that Individual Defendants used fraudulent subpoenas

to pressure crime victims and witnesses to meet with them outside of court.

Both the Ninth Circuit and our court have issued decisions involving somewhat

analogous facts. We discuss the relevant decisions in turn.

In Lacey v. Maricopa County, the Ninth Circuit held that a prosecutor

who had improperly issued fake subpoenas was not entitled to absolute

immunity for his conduct. 693 F.3d 896, 913–14 (9th Cir. 2012). The

prosecutor had created purported subpoenas and issued them to a news

organization without the prior grand jury or court approval required by

Arizona law. Id. at 909. The plaintiffs alleged that the prosecutor’s avoidance

of the judicial subpoena process was intentional. Id. at 914. In denying

absolute immunity, the Ninth Circuit stated that “[p]rosecutors generally

enjoy absolute immunity for their conduct before grand juries because that

conduct is integral to ‘the judicial phase of the criminal process.’ But we can

find no justification for extending absolute immunity to the acts of a prosecutor

designed to avoid the ‘judicial phase.’” Id. at 913 (citations omitted) (quoting

Imbler, 424 U.S. at 430).

The Ninth Circuit emphasized that usually, “the judicial

process . . . serves as ‘a check on prosecutorial actions.’” Lacey, 693 F.3d at 914

(quoting Burns, 500 U.S. at 492). But that oversight had failed in Lacey

“because the prosecutor acted on his own authority, rather than securing the

approvals required by Arizona law.” 693 F.3d at 914. Thus, even if authoring

a subpoena might, in another context, be considered part of a prosecutor’s

duties, “by avoiding judicial scrutiny, [the prosecutor’s] actions were one step

‘further removed from the judicial phase of criminal proceedings.’” Id. (quoting

Malley v. Briggs, 475 U.S. 335, 342 (1986)). The court concluded: “Where the

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prosecutor has side-stepped the judicial process, he has forfeited the

protections the law offers to those who work within the process.” Lacey, 693

F.3d at 914.

Similarly, in Loupe, we held that although the prosecutor enjoyed

absolute immunity for her decision to prosecute the plaintiff, she was not

absolutely immune for ordering his warrantless arrest. 824 F.3d at 539–40.

We noted that in ordering a warrantless arrest, a prosecutor

acts directly to deprive someone of liberty; he steps outside of his

role as an advocate of the state before a neutral and detached

judicial body and takes upon himself the responsibility of

determining whether probable cause exists, much as police

routinely do. Nothing in the procuring of immediate, warrantless

arrests is so essential to the judicial process that a prosecutor must

be granted absolute immunity.

Id. at 540 (quoting Lacey, 693 F.3d at 914). Recalling the Ninth Circuit’s

analysis in Lacey, we concluded that “[o]rdering a warrantless arrest is not

intimately associated with the judicial phase of the criminal process; it is

conduct outside the judicial process and therefore is not protected by absolute

immunity.” Loupe, 824 F.3d at 540.

Defendants argue that creating and issuing the fake subpoenas was

protected prosecutorial conduct because it “relate[d] to the core prosecutorial

function of preparing evidence and testimony for trial.” But the Supreme

Court has squarely rejected this broad interpretation of absolute immunity:

“Almost any action by a prosecutor, including his or her direct participation in

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 expansive.” Burns, 500 U.S. at 495; see also Buckley,

509 U.S. at 276 (declining to extend immunity to investigative conduct merely

because it might later “be retrospectively described as ‘preparation’” for a

judicial proceeding).

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Based upon the pleadings before us at this time, it could be concluded

that Defendants’ creation and use of the fake subpoenas was not “intimately

associated with the judicial phase of the criminal process,” but rather fell into

the category of “those investigatory functions that do not relate to an advocate’s

preparation for the initiation of a prosecution or for judicial proceedings.” See

Hoog-Watson v. Guadalupe Cty., 591 F.3d 431, 438 (5th Cir. 2009) (internal

quotation marks and citations omitted). This is so for two reasons. First,

Defendants allegedly used the subpoenas to gather information from crime

victims and witnesses outside of court. 5 “Investigation . . . ha[s] historically

and by precedent been regarded as the work of police, not prosecutors, and [it

does] not become [a] prosecutorial function[] merely because a prosecutor has

chosen to participate.” Simon v. City of New York, 727 F.3d 167, 172 (2d Cir.

2013) (internal quotation marks omitted); see also id. at 173–74 (denying

absolute immunity and noting that “a prosecutor has no power to subpoena a

5 Judging from the operative complaint, it is not clear whether charges were filed in

the domestic violence case against Singleton’s partner when Singleton received the fake

subpoenas. We recognize that Plaintiffs Baham, Doe, Bailey, and LaCroix received

subpoenas while related criminal cases were pending but, based upon the allegations before

us, the fake subpoenas were never used to secure their attendance or testimony in any

judicial proceeding. Thus, their situations are not governed by Cousin, in which the

defendant prosecutor told a witness to falsely implicate a suspect and practiced with him on

how to testify at trial while the trial was pending. See Cousin, 325 F.3d at 634–35. In Cousin,

we concluded that the prosecutor was entitled to absolute immunity because his actions were

“intended to secure evidence that would be used in the presentation of the state’s case at the

pending trial of an already identified suspect, not to identify a suspect or establish probable

cause.” Id. But there the actions occurred during a pending trial and were designed to shape

a witness’s testimony at that trial. Here, by contrast, Individual Defendants’ alleged use of

the fake subpoenas on Plaintiffs occurred earlier in the process. Baham received several fake

subpoenas over the course of several months after she stopped taking calls from investigators.

The facts before us do not support an argument that the reasons for sending Baham the fake

subpoenas qualify for absolute immunity. Doe met privately with a Defendant ADA at the

Office but does not allege that the ADA expressed any intent to use her testimony in the

pending trial. Both Bailey and LaCroix received fake subpoenas demanding private

meetings at the Office, but the complaint does not allege that prosecutors sought to use Bailey

or LaCroix’s testimony at trial. Indeed, prosecutors withdrew the fake subpoenas and never

called Bailey or LaCroix to testify.

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witness to appear outside of judicial proceedings to answer questions from the

prosecution”). Defendants’ information-gathering is more analogous to

investigative police work than advocatory conduct.

Defendants assert that their use of the fake subpoenas is like the Imbler

“prosecutor’s out-of-court effort ‘to control the presentation of his witness’

testimony,’” which the Supreme Court held was “fairly within his function as

an advocate.” But they overlook the context of the Court’s statement. In

Imbler, the petitioner argued that the prosecutor had engaged in investigative,

not prosecutorial, activity when he requested “during a courtroom recess that

[police] hold off questioning [a witness] about a pending bad-check charge until

after [the witness] had completed his testimony.” 424 U.S. at 430 n.32. The

Supreme Court determined that “[s]een in its proper light,” the prosecutor’s

“request of the officers was an effort to control the presentation of his witness’

testimony, a task fairly within his function as an advocate.” Id.

Here, in contrast, Defendants were not attempting to control witness

testimony during a break in judicial proceedings. Instead, they allegedly used

fake subpoenas in an attempt to pressure crime victims and witnesses to meet

with them privately at the Office and share information outside of court.

Defendants never used the fake subpoenas to compel victims or witnesses to

testify at trial. Such allegations are of investigative behavior that was not

“intimately associated with the judicial phase of the criminal process.” See

Imbler, 424 U.S. at 430.

Defendants also note that the fake subpoenas were all issued after

charges had been filed in the underlying criminal cases. It is true that the

Supreme Court in Buckley relied on the prosecutors’ lack of probable cause to

conclude that they were not absolutely immune for allegedly fabricating

evidence. See Buckley, 509 U.S. at 274. But the Court also recognized that

even after probable cause has been found, “a prosecutor may engage in ‘police

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investigative work’ that is entitled to only qualified immunity.” Id. at 274 n.5.

The Supreme Court has never held that the timing of a prosecutor’s actions

controls whether the prosecutor has absolute immunity. Instead, the Court

focuses on the function the prosecutor was performing. See id. at 273; Van de

Kamp, 555 U.S. at 342. Defendants’ use of the fake subpoenas in an attempt

to obtain information from crime victims and witnesses outside the judicial

context falls into the category of investigative conduct for which prosecutors

are not immune. Hoog-Watson, 591 F.3d at 438 (“[A] prosecutor does not enjoy

absolute immunity for acts of investigation or administration.” (alteration in

original) (internal quotation marks and citation omitted)).

In using the fake subpoenas, Individual Defendants also allegedly

intentionally avoided the judicial process that Louisiana law requires for

obtaining subpoenas. See LA. CODE CRIM. PROC. ANN. art. 66. Their creation

and use of the fake subpoenas thus fell “outside the judicial process.” Loupe,

824 F.3d at 540; see also Lacey, 693 F.3d at 914 (“[B]y avoiding judicial

scrutiny, [the prosecutor’s] actions were one step ‘further removed from the

judicial phase of criminal proceedings.’” (quoting Malley, 475 U.S. at 342)).

Construing the allegations in the light most favorable to Plaintiffs, the creation

and use of the fake subpoenas constituted investigative conduct for which

Individual Defendants would not be absolutely immune.

Denying Individual Defendants dismissal based upon absolute immunity

for their creation and use of the fake subpoenas also accords with the policy

underlying absolute prosecutorial immunity. Individual Defendants allegedly

violated the rights of victims and witnesses with no cases pending against

them. Denying them absolute immunity will not deter prosecutors’ future

decisions to charge specific defendants. Moreover, because Individual

Defendants issued the subpoenas without court supervision, they operated free

of “the checks and safeguards inherent in the judicial process.” Marrero, 625

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F.2d at 509. As a result, “there is greater need for private actions to curb

prosecutorial abuse and to compensate for abuse that does occur.” Id. This

case is likely Plaintiffs’ only means of legally redressing the harms they

suffered as a result of Individual Defendants’ alleged conduct. At the same

time, further facts may develop that support Individual Defendants’ defense.

We leave open whether Individual Defendants may satisfy their burden of

showing absolute immunity at the summary judgment stage. See Hoog-

Watson, 591 F.3d at 437 n.6 (stating in the summary judgment context that

“the defendant who pleads the affirmative defense of absolute prosecutorial

immunity bears the burden of proving that the conduct at issue served a

prosecutorial function”). We offer no opinion on the future; we simply affirm

the district court’s decision presented to us.

For the foregoing reasons, we hold that the district court did not err in

denying the Individual Defendants absolute immunity for their alleged

creation and use of fake subpoenas at this stage of the case.

Merits Jurisdiction

Defendants also appeal the district court’s denial of their motion to

dismiss a number of claims for failure to state a claim on which relief may be

granted. But we lack jurisdiction over this part of Defendants’ appeal.

Defendants first argue that “[b]ecause the district court denied qualified

immunity with respect to several claims against several Defendants,” we have

jurisdiction to consider the merits of those claims. See Bosarge, 796 F.3d at

439 (stating that an appellate court reviewing a Rule 12(b)(6) motion to dismiss

on qualified immunity grounds has “‘jurisdiction to pass on the sufficiency of

[the] pleadings,’ which is an ‘issue of law’ that ‘is both inextricably intertwined

with, and directly implicated by, the qualified immunity defense’” (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 672–73 (2009)). Defendants also contend that

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even though Plaintiffs’ official-capacity claims and claims for injunctive relief

are “not directly at issue in this immunity appeal, the Court can and should

consider and grant relief as to these claims to the extent that they turn on

issues closely related to, or inextricably intertwined with, the immunity

issues.”

But as a result of a recent ruling by the district court, no qualified

immunity issues are currently before us. The only remaining immunity

question is whether Individual Defendants are absolutely immune from

Plaintiffs’ state-law claims concerning the subpoenas. This question does not

implicate the merits of Plaintiffs’ federal claims. We lack jurisdiction to

consider the merits of Plaintiffs’ federal claims at this stage of the appeal.

Defendants also ask us to exercise pendent appellate jurisdiction to

review the merits of Plaintiffs’ remaining state-law claims. They rely on cases

in which this court, reviewing appeals from denials of qualified immunity on

federal claims, exercised pendent jurisdiction to review the merits of related

state-law claims.

But pendent jurisdiction is inapposite here. “Only where essential to the

resolution of properly appealed collateral orders should courts extend their

[collateral-order] jurisdiction to rulings that would not otherwise qualify for

expedited consideration.” Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 51

(1995) (quoting Riyaz A. Kanji, The Proper Scope of Pendent Appellate

Jurisdiction in the Collateral Order Context, 100 YALE L.J. 511, 530 (1990)).

Defendants do not contend that resolving the legal sufficiency of Plaintiffs’

state-law claims is essential to our resolution of the absolute immunity issue.

We thus lack jurisdiction to consider the merits of Plaintiffs’ state-law claims.

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Case: 19-30197 Document: 00515390634 Page: 17 Date Filed: 04/21/2020

No. 19-30197

Conclusion

We AFFIRM the district court’s holding that Individual Defendants are

not entitled to absolute immunity for their alleged creation and use of

fraudulent subpoenas. We DISMISS the remainder of Defendants’ appeal for

lack of jurisdiction.

17