Diaz-Colon, et al v. Sullivan, et al

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Jeffrey R. Howard, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [13-2340]

Case: 13-2340

Document: 00116837984

Page: 1

Date Filed: 05/18/2015

Entry ID: 5908508

United States Court of Appeals
For the First Circuit
No. 13–2340
JOSÉ LUIS DÍAZ-COLÓN, on his own behalf and on behalf of his
minor son J.L.D.R.; LINDA DELGADO, on behalf of her minor
daughter D.M.D.D.; ZORAIDA COLÓN-CARTAGENA; PEDRO DÍAZ; PEDRO
LUIS DÍAZ-COLÓN; YAHAIRA ENID DÍAZ-COLÓN; LOURDES DE JESÚSVELÁZQUEZ, on her own and on behalf of her minor children
J.L.S.D.; J.L.L.S.D., on their own and as legal heirs of Leopoldo
Sanabria-Díaz; L.S.D., on their own and as legal heirs of
Leopoldo Sanabria-Díaz; ALBAELA DÍAZ-CARABALLO; LEONARDO
SANABRIA-DÍAZ; JENNIFER PIRIS-JUSINO, on her own and on behalf of
her minor daughter G.R.P.; LUCY GUZMÁN-BORRERO; CARMELO
VELÁZQUEZ-COLÓN; CARMELO COLÓN-RIVERA; ORLANDO COLÓN-VELÁZQUEZ;
ORLANDO RAMOS-FÉLIX; JOSEFA FÉLIX; JOSÉ ANTONIO FÉLIX; ELISEO
RAMOS-FÉLIX; JUAN MARCOS MERCED-GÓMEZ; HÉCTOR MERCED-RODRÍGUEZ;
MARÍA E. GÓMEZ-VELÁZQUEZ; LEOPOLDO SANABRIA-MORALES; MARIBEL
ORTIZ-VÁZQUEZ, on behalf of minor, J.M.S.O; ANA LUISA
DÍAZ-RIVERA; YOLANDA ORTIZ-DÍAZ; EVELYN ORTIZ-DÍAZ; LUIS DANIEL
ORTIZ-DÍAZ; DIGNO ORTIZ-DÍAZ; FRANCIS I. LÓPEZ-DÍAZ; CHELSEA LUZ
MERCED; HÉCTOR JULIO MERCED-GÓMEZ,
Plaintiffs, Appellees,
v.
JOSÉ A. FUENTES-AGOSTINI; GABRIEL REDONDO; JUAN JOSÉ
TOLEDO-BAYOUTH; JOSÉ CAPÓ; JOSÉ TOLEDO-BAYOUTH; FERNANDO
TOLEDO-BAYOUTH; PEDRO J. TOLEDO-BAYOUTH; ANÍBAL SOLIVAN-SOLIVAN;
HÉCTOR TIRADO; DANIEL COLÓN; FRANCISCO BÁEZ-QUIÑONES; JESÚS
FIGUEROA-CRUZ,
Defendants, Appellants,
PEDRO TOLEDO-DÁVILA; FNU CANDELARIA; ESTATE OF ULPIANO-CRESPO,
comprised of unknown individuals K through S; JOSÉ FIGUEROA;
ULPIANO CRESPO; ZOÉ DÍAZ-COLÓN; CONJUGAL PARTNERSHIP BÁEZ-DOE;
CONJUGAL PARTNERSHIP CAPÓ-DOE; CONJUGAL PARTNERSHIP COLÓN-DOE;
CONJUGAL PARTNERSHIP DÍAZ-DOE; CONJUGAL PARTNERSHIP FIGUEROA-DOE;
CONJUGAL PARTNERSHIP FUENTES-DOE; CONJUGAL PARTNERSHIP
REDONDO-DOE; CONJUGAL PARTNERSHIP SOLIVAN-DOE; CONJUGAL
PARTNERSHIP TIRADO-DOE; CONJUGAL PARTNERSHIP TOLEDO-DOE,
Defendants.

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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]

Before
Torruella, Howard, and Kayatta,
Circuit Judges.

Ivonne Cruz-Serrano, with whom Miguel A. Rangel Rosas and
Maymí, Rivera, LLC, were on brief, for appellants.
Pedro R. Vázquez, III, with whom José F. Quetglas Jordán,
Quetglas Law, Osvaldo Pérez Marrero, and Osvaldo Pérez Marrero Law
Office, were on brief, for appellees.

May 18, 2015

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KAYATTA, Circuit Judge.

Date Filed: 05/18/2015

Entry ID: 5908508

This lawsuit arises out of two

sets of wrongful murder convictions in Puerto Rico's courts.

In

each murder trial, jurors convicted a group of individuals based in
large part on the testimony of a single witness, Zoé Díaz-Colón
("Díaz"). After one of the convicted individuals killed himself in
prison, Díaz came forward to recant her testimony, claiming that
law enforcement personnel had coerced and bribed her into giving
fabricated testimony.

After the Commonwealth courts subsequently

vacated the convictions, and all charges against them were dropped,
the wrongfully convicted individuals (and/or their heirs and family
members) filed these consolidated civil damages actions in federal
court against police officers and prosecutors involved in their
misbegotten prosecutions. Nine of those law enforcement defendants
(or their heirs) now appeal from the denial of their respective
motions

for

immunities.
assistant

summary

judgment

based

on

absolute

or

qualified

We reverse in part the denial of summary judgment for
district

attorney

Gabriel

Redondo-Miranda

("ADA

Redondo"), but otherwise affirm the district court's rulings.
I.
Because

this

Background

appeal

arises

from

the

denial

of

the

defendants' motions for summary judgment, we present the facts in
the light most favorable to the plaintiffs, accepting as true all
of the inferences the district court drew in the plaintiffs' favor.
Cady v. Walsh, 753 F.3d 348, 350 (1st Cir. 2014).

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And because our

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review in this case is interlocutory, we train our focus on rulings
of law, rather than assessments of fact.
A.

Id. at 358-59.

Factual Background
Puerto Rico police hired Díaz as a paid informant on

August 2, 1995.

The following day, Rafael Colomba was murdered in

Salinas, Puerto Rico.

More than two years later Antonio Peña was

murdered in Salinas on November 5, 1997.

Defendant police agent

Jesús Figueroa-Cruz ("Agent Figueroa")1 investigated the Colomba
murder, and defendant police agent Francisco Báez-Quiñones ("Agent
Báez")

led

the

investigation

into

Peña's

murder.

The

investigations stalled until June of 1998, when Díaz gave two sworn
statements at the Guayama police station claiming both that:
(1) she heard Orlando Ramos-Félix, Carmelo Vélazquez Colón, and
Leopoldo Sanabria-Díaz ("Sanabria") plan and later admit to the
Colomba murder; and (2) she also heard José Díaz-Colón, Héctor
Merced Gómez, and Manuel Ortiz ("Ortiz") plan and later admit to
the Peña murder.

Agent Figueroa and defendant assistant district

attorney José Capó ("ADA Capó") were present for the taking of
Díaz's statement on the Colomba murder.

ADA Redondo did not

participate in the investigation of either murder.

1

Jesús Figueroa-Cruz and Jesús Figueroa-de Jesús are listed
as separate defendants on the docket, but they are in fact the same
person. In his answer to the amended complaint, Agent Figueroa
clarified that his correct name is Jesús Figueroa-Cruz.
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Díaz was the key prosecution witness at both murder
trials.2

No one told defense counsel during either trial that Díaz

had been a paid confidential informant for the police.

Based on

Díaz's testimony in the respective trials, both sets of plaintiffs
were convicted and sentenced to prison.

Ortiz committed suicide

soon after his conviction for the Peña murder in May of 1999.
After learning in 2001 of Ortiz's suicide, Díaz recanted, claiming
in a sworn declaration that her trial testimony against the
plaintiffs was fabricated.3
Díaz's recantation led to motions from the four living
convicts for new criminal trials.

At the hearings on those

motions, Díaz testified that Agent Báez knew that she was a paid
informant, and that he coerced, bribed, and coached her into giving
the statements implicating plaintiffs in the Colomba or Peña
murders.4

Díaz testified that Agent Báez told her what to say,

familiarized her with the murder scenes and photographs of the
plaintiffs, and repeatedly met with her to rehearse her statements,

2

Díaz also testified for prosecutors in yet a third murder
trial against a criminal defendant who is not a plaintiff in this
case.
3

In 2003, after the Puerto Rico trial court denied his motion
for a new trial, Sanabria also committed suicide in prison.
4

We deny as moot plaintiffs' motion, opposed by defendants,
to file with this court a supplemental appendix containing the
excerpts of Díaz's transcribed testimony that plaintiffs relied on
in the district court to oppose summary judgment. See Fed. R. App.
P. 30(a)(2) ("Parts of the record may be relied on by the court or
the parties even though not included in the appendix.").
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which she memorized.

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She claimed, too, that Agent Figueroa

attended some of these rehearsals.

Díaz further testified that

Agent Báez and a prosecutor5 offered her housing and custody of her
children in exchange for testimony consistent with her sworn
statements.

In addition, she testified that ADA Redondo offered

her a therapy machine for her asthma while she was staying in a
witness protection shelter during one of the trials in which she
testified falsely for the prosecution.
In

2008,

the

Supreme

Court

of

Puerto

Rico

vacated

plaintiff Velázquez's conviction and granted a new trial on the
ground that the prosecutors had not timely disclosed exculpatory
evidence, including Díaz's contract as a paid informant. Pueblo v.
Velázquez-Colón, 174 D.P.R. 304 (2008).6

Shortly thereafter, the

government requested and the trial court ordered the dismissal of
the criminal charges against all of the plaintiffs.
B.

Procedural Background
The plaintiffs associated with each group of wrongfully

convicted individuals commenced separate actions in federal court
against

the

same

set

of

defendants.7

The

district

court

5

That prosecutor has since died. The plaintiffs sued his
estate, but his heirs did not appear and are not appellants.
6

The parties submitted to the district court a certified
English translation of the Supreme Court of Puerto Rico opinion.
ECF No. 300-1.
7

The plaintiffs also sued Díaz, who did not answer or appear.
The district court entered a default against her in the first case,
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consolidated the two cases.

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The plaintiffs asserted claims under

42 U.S.C. § 1983 for violations of the Fourth and Fourteenth
Amendments, and various constitutional and tort claims under Puerto
Rico law.

After the district court granted in part defendants'

motion to dismiss some of the claims, only Agent Báez, Agent
Figueroa, and ADA Redondo remained as targets of the federal
section 1983 claims (for malicious prosecution under the Fourth
Amendment and conspiracy to deprive plaintiffs of their rights
under federal law).

Diaz-Colon v. Toledo-Davila, 922 F. Supp. 2d

189, 209-10 (D.P.R. 2013).

State tort and vicarious liability

claims under Puerto Rico law remained against all of the defendants
who are parties to this appeal.8

Id.

During discovery, plaintiffs scheduled Díaz's deposition
in Puerto Rico.

But Díaz fled Puerto Rico shortly before her

deposition because she allegedly received threats at her hotel.
Subsequent attempts to schedule her deposition by video failed.
After

the

close

of

discovery,

defendants

moved

for

summary judgment on a variety of grounds, including that they were
entitled to qualified or absolute immunity and that there was

no. 09–1835, before the two cases were consolidated.
8

The defendants-appellants who face only state law claims are
former Secretary of Justice José Fuentes-Agostini (Puerto Rico's
equivalent of a state attorney general), ADA Capó, police captains
Aníbal Solivan-Solivan and Héctor Tirado, police sergeant Daniel
Colón, and members of the estate of former Puerto Rico Police
Superintendent Pedro Toledo-Dávila.
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insufficient evidence to support plaintiffs' claims.

Entry ID: 5908508

To oppose

defendants' motion for summary judgment, plaintiffs relied heavily
on the transcripts of Díaz's 2001 testimony during the hearings on
the motions for new criminal trials.

Plaintiffs also filed a

motion in limine seeking a ruling on the admissibility of the
transcripts of Díaz's 2001 testimony under the hearsay exceptions
applicable to former testimony, to statements against interest, and
to otherwise reliable out-of-court communications.

See Fed. R.

Evid. 804(b)(1), (3); 807. That testimony described outright fraud
by some of the defendants--but not ADA Redondo--in fabricating
evidence that was then used to secure an indictment and subsequent
prosecution.

It also supported a finding that ADA Redondo offered

Díaz an asthma machine while she was staying in the witness
protection shelter during a trial.9
opposition

to

plaintiffs'

summary

motion

judgment

in

limine,

In their reply to plaintiffs'
and

in

their

defendants

opposition
contested

to
the

admissibility of the transcripts.
Rather

than

addressing

the

merits

of

defendants'

qualified immunity defense, the district court rejected the defense

9

The evidence strongly suggests that ADA Redondo made this
offer when Díaz experienced medical difficulties during yet a
third, later trial at which Díaz testified, and that he disclosed
the offer to defense counsel and to the court.
The criminal
defendant in that later trial was acquitted and is not a plaintiff
in this case. But, in view of the summary judgment standards, we
will assume that the offer occurred in one of the two trials in
which some of the plaintiffs were convicted.
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on procedural grounds as insufficiently argued and briefed.

In so

ruling, the district court observed that defendants "d[id] not
specify . . . which individuals are purportedly protected by
qualified immunity or for what conduct," and instead "merely
cite[d] federal case law regarding qualified immunity, without
applying it to the facts of their case."

As for ADA Redondo's

absolute immunity defense, the district court rejected it on the
merits, concluding somewhat cryptically that the evidence would
support a finding that ADA Redondo offered Díaz an asthma machine
in exchange for her testimony.

Finally, on the state law claims,

the court "note[d] its frustration with the poorly pled arguments
made by all parties" and refused to consider those arguments as
well.

The district court also found that defendants' exclusive

reliance on federal qualified immunity case law precluded the court
from determining whether any of the defendants were entitled to
immunity from the Puerto Rico law claims.

This interlocutory

appeal followed.10

10

After filing their notice of appeal, defendants sought from
this court a stay of trial pending the appeal. Another panel of
this court granted the stay with the instruction that the parties
brief "the appealability of the issue of the admissibility of
evidence on which the district court relied in denying summary
judgment on the ground of qualified immunity," and directed the
parties to Mersch v. City of Dallas, 207 F.3d 732, 735 (5th Cir.
2000), as a starting point.
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II.
A.

Date Filed: 05/18/2015

Entry ID: 5908508

Analysis

The Qualified Immunity Defenses
In their main brief on appeal, defendants present over

fifty pages of conclusory assertions, discursive digressions, and
factual contentions largely bereft of record citations or salient
organization, all under the rubric of a single argument:

"The

district court erred in denying summary judgment as to the issues
of qualified and/or absolute immunity, inasmuch as the court
centered its ruling on inadmissible hearsay evidence." The hearsay
to which defendants refer are the transcripts of Díaz's testimony
in which she recanted her prior trial testimony and described what
plaintiffs point to as the coercion, bribes, and coaching that
produced her false testimony leading to and presented in the
criminal trials.
The problem for all appellants other than ADA Redondo is
that the district court plainly did not center its qualified
immunity ruling on any evidence at all, admissible or not. Rather,
it denied their request for summary judgment to the extent that
their request was based on qualified immunity defenses under state
and federal law for an entirely independent, procedural reason:
defendants' failure to explain how the law applied to the facts
concerning each defendant.

Piling one omission on top of another,

defendants fail to develop any argument in their brief on appeal
for why the district court erred in finding defendants' confusing

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and poorly structured motion papers insufficient even to bring
forward their defenses.

Indeed, defendants' lengthy brief to us

makes no mention of the district court's actual grounds for its
ruling

on

the

qualified

immunity

defenses.

And

even

after

plaintiffs' opposing brief drew this defalcation to defendants'
attention, the reply brief offers no reference to any argument or
analysis that belies the district court's conclusion.

Instead,

defendants merely assert that there was evidence in the record that
the district court ignored, which misses the point.
We

share

the

district

court's

frustration

with

inadequate briefing submitted on behalf of the defendants.

the

It is

black letter law that "we deem waived claims not made or claims
adverted to in a cursory fashion, unaccompanied by developed
argument."

Rodríguez v. Municipality of San Juan, 659 F.3d 168,

175 (1st Cir. 2011); cf. De Araujo v. Gonzales, 457 F.3d 146,
152–53 (1st Cir. 2006) (petitioner's failure to challenge Board of
Immigration Appeal's summary dismissal of his case for failure to
file a brief waived his argument on the merits).

For this simple

reason, we reject the appeal of all defendants to the extent it is
predicated on their qualified immunity defenses under federal or
state law.11

11

This holding does not mean that all of the remaining claims
against all of these defendants will ultimately make it to the
factfinder. See Fed. R. Civ. P. 50(a); Camilo-Robles v. Hoyos, 151
F.3d 1, 9 (1st Cir. 1998) ("When a defendant fails on a pretrial
qualified immunity claim, he nonetheless can plead qualified
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ADA Redondo's Absolute Immunity Defense
That leaves only ADA Redondo's appeal of the denial of

his absolute immunity defense to the federal claims against him.
He argues that the district court erred in denying his motion for
summary judgment based on his absolute immunity defense.

The

district court rejected that defense on the merits, based solely on
the finding that "[e]vidence in the record suggests that [ADA
Redondo] offered Díaz-Colon an asthma therapy machine in exchange
for her testimony."
ADA Redondo's initial argument for reversing the district
court's finding against him is that the 2001 testimony of Díaz upon
which the court relied will not be admissible at trial, see Fed. R.
Civ. P. 56(c)(2), because Díaz will not appear to testify.

This

argument seems to be quite a stretch given that Díaz's sworn 2001
testimony confessing to and describing her elaborate perjury had a
great "tendency . . . to expose [Díaz] to civil or criminal
liability," and was thus most likely admissible as an exception to
the rule against hearsay.

Fed. R. Evid. 804(b)(3)(A); see also

United States v. Jiménez, 419 F.3d 34, 43 (1st Cir. 2005); Whitlock
v. Brueggemann, 682 F.3d 567, 575 (7th Cir. 2012).

Additionally,

even if the argument had some hope of success, it is not clear that

immunity as an affirmative defense and resurrect the claim at
trial."). Rather, we hold only that these defendants both below
and on appeal have waived any ability to secure summary judgment in
their favor.
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we could consider it given the interlocutory nature of this appeal.
Compare Whitlock, 682 F.3d at 575 (no review of evidentiary issue
on interlocutory appeal); and Ellis v. Washington Cnty., 198 F.3d
225, 229 (6th Cir. 1999) (same); with Mersch v. City of Dallas, 207
F.3d 732, 735 (5th Cir. 2000) (reviewing evidentiary issue).
Ultimately, we need not rule on this evidentiary argument
or examine more closely our jurisdiction even to consider such an
argument on interlocutory review.

Rather, we turn to and rely on

a second argument that Redondo advances for reversing the summary
judgment denial on its merits.12

That argument challenges the

district court's conclusion that, if ADA Redondo did what Díaz says
he did (offer her an asthma therapy machine in exchange for her
testimony), his immunity as a prosecutor would not protect him.
The basic principles applicable to assertions of absolute
prosecutorial immunity are set forth in Van de Kamp v. Goldstein,
555 U.S. 335 (2009).

See also Knowlton v. Shaw, 704 F.3d 1, 5 (1st

Cir. 2013). Prosecutorial immunity applies to conduct "'intimately
associated with the judicial phase of the criminal process.'"

Van

de Kamp, 555 U.S. at 343 (quoting Imbler v. Pachtman, 424 U.S. 409,
430

(1976)).

Deciding

where

to

draw

the

line

between

such

immunized prosecutorial advocacy and conduct that is, for example,

12

We do note that the undifferentiated structure of
defendants' appellate briefing, the jumbling together of all the
defendants, and the lack of any helpful table of contents or
argument headings came close to causing us to consider this
argument waived as well.
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exclusively investigative or administrative is not always easy.
See, e.g., Genzler v. Longanbach, 410 F.3d 630, 637 (9th Cir. 2005)
("[T]he

Supreme

Court

has

resisted

any

attempt

bright-line between" advocacy and investigation).

to

draw

a

Nevertheless,

our task in this case is made somewhat easier by the district
court's uncontested finding that ADA Redondo did not participate
in, or advise the police in connection with, the investigations of
the murders.

This finding rules out the possibility that ADA

Redondo had anything to do with inducing Díaz to give the false
statements that implicated plaintiffs in the unsolved crimes.

Cf.

Buckley v. Fitzsimmons, 509 U.S. 259, 274 (1993) (no immunity for
fabricating evidence before probable cause established); Burns v.
Reed, 500 U.S. 478, 496 (1991) (no immunity for giving advice to
police during investigation). Instead, his involvement was limited
to his actions as a prosecutor in connection with preparing the
Commonwealth's evidence at trial.

And it has long been clear that

absolute immunity bars a damages action against a prosecutor for
presenting testimony at trial even if the prosecutor knows that the
testimony is false.

Imbler, 424 U.S. at 430–31 & n.33.

The assertion in this case that the prosecutor not only
presented false testimony, but also offered something of value to
induce a trial witness to testify creates no basis for concluding
that the conduct was any less "intimately associated with the
judicial phase of the criminal proceeding." Id. at 430. Preparing

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trial witnesses is at the core of what a prosecutor qua prosecutor
does,

and

the

proceeding.

trial

itself

is

the

quintessential

judicial

Buckley, 509 U.S. at 273 (immune tasks "include the

professional evaluation of the evidence assembled by the police and
appropriate

preparation

for

its

presentation

at

trial").

Prosecutors regularly prepare and present testimony by witnesses to
whom

the

government

cooperation.

has

offered

inducements

to

secure

their

Disclosure requirements and due process principles

provide some protection to criminal defendants from abuses of this
practice.

Brady v. Maryland, 373 U.S. 83, 87 (1963); Napue v.

Illinois, 360 U.S. 264, 269 (1959) ("[I]t is established that a
conviction obtained through use of false evidence, known to be such
by representatives of the State, must fall under the Fourteenth
Amendment.") (citing Mooney v. Holohan, 294 U.S. 103, 112–13 (1935)
(per curiam)).
wrongfully

It is another thing altogether, though, to provide

charged

individuals

with

a

private

damages

remedy

against prosecutors when cooperating witnesses lie. If prosecutors
could be sued civilly every time any such witness claimed a
wrongful inducement to lie, prosecutors might well be exposed to
numerous such suits. Weighing the costs and benefits to the public
interest of such an exposure to civil liability, the law bars such
claims when they arise out of the prosecutor's work in a criminal
proceeding.

See Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994); Rose

v. Bartle, 871 F.2d 331, 344–45 (3d Cir. 1989). See generally, Van

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de Kamp, 555 U.S. at 342 (discussing policy reasons for shielding
prosecutors).
In a last-ditch effort, plaintiffs' counsel argued that
ADA Redondo's participation on "the prosecution team" defeated
absolute

immunity,

presumably

by

making

him

liable

for

the

misconduct of others in the previous procuring of the false
statements.

Adopting

this

approach

would

render

prosecutors

vicariously liable in all cases involving improper actions since,
at some point, a prosecutor is always a member of "the prosecution
team." Such an exponential increase in potential liability plainly
conflicts

with

the

purpose

of

affording

prosecutors

absolute

immunity, to insulate prosecutorial discretion and resources from
the threat of litigation.
424 U.S. at 424–25.

Van de Kamp, 555 U.S. at 345; Imbler,

Absolute immunity therefore shields ADA

Redondo from having to stand trial for the malicious prosecution
and conspiracy claims under section 1983.
III.

Conclusion

We reverse and remand for entry of summary judgment for
ADA Redondo on plaintiffs' federal claims for malicious prosecution
and conspiracy. We otherwise affirm the district court's denial of
summary judgment, and remand for proceedings consistent with this
decision.

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