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Keith A. Kent v. Joseph v. Cardone

January 5, 2011

KEITH A. KENT, PLAINTIFF-COUNTER-DEFENDANT-APPELLEE,
v.
JOSEPH V. CARDONE, GLADYS M. DROUGHT, EDWARD STYMUS, SHARON LEO, DEFENDANT-APPELLANT, DEFENDANTS-COUNTER-CLAIMANTS, COUNTY OF ORLEANS, DEFENDANT.



Kent v. Cardone

SUMMARY ORDER

ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE ROCEDURE 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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 5th day of January, two thousand eleven.

PRESENT: DENNIS JACOBS, Chief Judge, GUIDO CALABRESI, ROBERT D. SACK, Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be REVERSED.

Defendant-Appellant Joseph Cardone ("Cardone"), the District Attorney for Orleans County, New York, appeals from a decision and order of the United States District Court for the Western District of New York (Curtin, J.) denying Cardone's motion to dismiss the complaint on the basis of absolute immunity. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.

Plaintiff-Appellee Keith Kent ("Kent"), a logger from Albion, NY, filed suit in the Supreme Court for the County of Orleans against Gladys M. Drought ("Drought"), her brother Edward Stymus ("Stymus"), her daughter Sharon Leo ("Leo"), Cardone, and the County of Orleans, alleging various causes of action arising out of a January 2006 logging contract between Kent and Drought, by which Kent would pay $11,000 to log designated trees on Drought's property, plus an additional sum to log unspecified other trees. As Kent was logging, Stymus raised a dispute as to the value of the trees. Five days later, Leo filed a complaint against Kent with the New York State Police alleging that Kent took advantage of Drought. Three months later, at the instigation of Drought, Leo, and Stymus, Kent was arrested and charged with grand larceny in the third degree, criminal possession of stolen property, tampering with physical evidence, unlawful removal of protected plants, and trespass.

Kent alleges that, while he was in police custody, Cardone threatened to indict him if he did not pay Drought the money that she sought for the trees--an amount that Kent considered to be unreasonable; that Cardone presented charges to a grand jury when Kent refused to pay; that after his presentation to the grand jury, Cardone followed several of them to a restaurant to continue his argument; and that the single charge in the resulting indictment (tampering with evidence) was eventually dismissed.

"When a district court denies immunity on a Rule 12(b)(6) motion to dismiss, 'we review the district court's denial de novo, accepting as true the material facts alleged in the complaint and drawing all reasonable inferences in plaintiffs' favor.'" Warney v. Monroe County, 587 F.3d 113, 120 (2d Cir. 2009) (quoting Johnson v. Newburgh Enlarged School Dist., 239 F.3d 246, 250 (2d Cir. 2001)). We have jurisdiction to review a denial of absolute immunity under the collateral order doctrine if the denial involves only a question of law. See Nixon v. Fitzgerald, 457 U.S. 731, 742-43 (1982).

Prosecutors are entitled to absolute immunity when they engage in activities "intimately associated with the judicial phase of the criminal process," Imbler v. Pachtman, 424 U.S. 409, 430 (1976), and done "in the course of [their] role as . . . advocate[s] for the State," Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Whether an action is "prosecutorial" is determined by a "'functional approach,' which looks to 'the nature of the function performed, not the identity of the actor who performed it.'" Id. at 269 (citations omitted) (quoting Burns v. Reed, 500 U.S. 478, 486-87 (1991); Forrester v. White, 484 U.S. 219, 229 (1988)). "In Imbler, the Court concluded that the 'reasons for absolute immunity appl[ied] with full force' to the conduct at issue because it was 'intimately associated with the judicial phase of the criminal process.'" Van de Kamp

v. Goldstein, --- U.S. ---, 129 S. Ct. 855, 861 (2009) (alteration in original) (citing Imbler, 424 U.S. at 430). Although the "duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom," Imbler, 424 U.S. at 431 n.33, absolute prosecutorial immunity is afforded "only for actions that are connected with the prosecutor's role in judicial proceedings, not for every litigation-inducing conduct," Burns, 500 U.S. at 494.

A prosecutor therefore has absolute immunity from a claim for damages for "initiating a prosecution," Imbler, 424 U.S. at 431; see, e.g., Barr v. Abrams, 810 F.2d 358, 362 (2d Cir. 1987) (absolute immunity extends to prevent suit against prosecutors based on their actions in filing criminal information and procuring arrest warrant), as well as for his performance of tasks as an advocate in the conduct of the prosecution, see, e.g., Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994) (holding that a prosecutor was absolutely immune from liability on damages claim that he conspired to present false evidence at criminal trial).

Absolute immunity likewise extends to an agreement to forgo prosecution in exchange for certain types of concessions. In Taylor v. Kavanagh, 640 F.2d 450 (2d Cir. 1981), for example, the plaintiff brought a suit for damages on the ground that in a prior criminal proceeding the prosecutor had misrepresented facts to him, inducing him to plead guilty to certain charges; we ruled that the prosecutor enjoyed absolute immunity because he was plea bargaining, a prosecutorial function. Id. at 453. In Schloss v. Bouse, 876 F.2d 287 (2d Cir. 1989), the prosecutor required ...


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