Flagler v. Trainor

10-4081-cv
Flagler v. Trainor

1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5
6
7 August Term, 2011
8
9 (Argued: September 14, 2011 Decided: November 21, 2011)
10
11 Docket No. 10-4081-cv
12
13
14
15 STEPHANIE FLAGLER,
16
17 Plaintiff-Appellant,
18
19 -v.-
20
21 MATTHEW E. TRAINOR, Assistant District Attorney, Fulton County,
22 New York and THE COUNTY OF FULTON, NEW YORK,
23
24 Defendants-Appellees.
25
26
27
28 Before:
29 CALABRESI, WESLEY, and LYNCH, Circuit Judges.
30
31 Appeal from an order and judgment of the United States
32 District Court for the Northern District of New York
33 (McCurn, J.), which granted Defendants-Appellees’ motion to
34 dismiss Plaintiff-Appellant’s complaint in its entirety
35 based on absolute prosecutorial immunity.
36
37 Defendants-Appellees moved the district court to
38 dismiss Plaintiff-Appellant’s complaint pursuant to Federal
39 Rule of Civil Procedure 12(b)(6), arguing that Defendant-
40 Appellee Matthew Trainor, a Fulton County Assistant District
41 Attorney, was absolutely immune from Plaintiff-Appellant’s
 1 claims.1 We conclude that the district court correctly
2 found Trainor absolutely immune from liability for making
3 alleged false statements in support of a material witness
4 order and warrant.
5
6 We also conclude, however, that the district court
7 erred by finding Trainor absolutely immune from Plaintiff-
8 Appellant’s other claims. Because absolute immunity only
9 extends to conduct related to prosecutorial functions that
10 are intimately associated with initiating or presenting the
11 State’s case, it does not immunize prosecutors from
12 liability for: (1) making defamatory statements to the
13 press; (2) accessing a person’s voicemail without consent;
14 or (3) persuading a party to a conversation to record its
15 contents. We also vacate and remand for the district court
16 to consider in the first instance whether immunity extends
17 to Trainor’s decision to “preserve” evidence after the
18 criminal prosecution has run its course.
19
20 We express no view as to the substantive viability of
21 these claims. We simply conclude that absolute immunity
22 does not shield this conduct.
23
24 AFFIRMED in part, VACATED and REMANDED in part.
25
26
27
28 BRADFORD BENSON, The Golden Law Firm, Utica, NY, for
29 Plaintiff-Appellant.
30
31 THOMAS HIGGS, Murphy, Burns, Barber & Murphy, LLP,
32 Albany, NY, for Defendants-Appellees.
33
34
35
36 WESLEY, Circuit Judge:
37
38 This case requires us to revisit the purpose and scope

39 of absolute immunity for prosecutors.

1
Flagler sued Fulton County, but has abandoned those
claims. See Flagler v. Trainor, No. 08-cv-138, 2010 WL 3724015,
at *3 (N.D.N.Y. Sept. 15, 2010). In addition, Flagler has
clarified that she only sued Trainor in his individual capacity;
she does not sue him in his official capacity.

2
 1 I.

2 Plaintiff-Appellant Stephanie Flagler was a victim of

3 domestic violence at the hands of her ex-boyfriend, Brandon

4 Becker. A grand jury indicted Becker for a criminal matter

5 in which Flagler was the complaining witness. Becker’s

6 trial was scheduled to begin on March 12, 2007. In the days

7 leading up to Becker’s trial, Assistant District Attorney

8 Matthew Trainor grew concerned that Becker was encouraging

9 Flagler to leave the state in order to avoid testifying at

10 his trial. In addition, Trainor spoke with Becker’s ex-

11 wife, who claimed that Flagler had told her that she planned

12 to leave the state from March 5, 2007 to March 12, 2007 and

13 would not talk to anyone in the District Attorney’s office.

14 A. Material Witness Order and Arrest Warrant.

15 Trainor sought a material witness order to secure

16 Flagler’s attendance at Becker’s trial pursuant to New York

17 Criminal Procedure Law Article 620. He alleged that Flagler

18 had quit responding to telephone calls after January 5,

19 2007, and that she was “avoiding service of subpoena [sic]

20 for the upcoming trial.” He also recounted for the court

21 his conversation with Becker’s ex-wife. Trainor moved for

22 the material witness order on March 1, 2007. On the basis

3
 1 of Trainor’s affirmation, the County Court ordered Flagler

2 to appear at a hearing on March 7, 2007 in order to

3 determine whether she “should be adjudged a material

4 witness.” The court also issued a material witness arrest

5 warrant. In doing so, the judge found “reasonable cause” to

6 believe that Flagler “would be unlikely to respond” to the

7 court’s order voluntarily.

8 In her complaint, Flagler alleged that Trainor

9 knowingly made false statements in support of the material

10 witness order. She claimed that while she had planned to

11 leave for a vacation on March 8, 2007, Trainor knew that she

12 would return on March 11, 2007, in time for Becker’s trial.

13 She asserted that despite knowing her home, work, and school

14 addresses, Trainor made no attempt to notify her about

15 Becker’s upcoming trial or to subpoena her. In addition,

16 Flagler alleged that while the County Court issued the

17 material witness arrest warrant on March 1, 2007, she was

18 not arrested until March 7, 2007, one day after she called

19 Trainor and confirmed that she would testify.

20 B. Flagler’s Arrest, the Material Witness Hearing, and the
21 Confiscation of Flagler’s Cell Phone.

22 Pursuant to the material witness arrest warrant, the

23 Utica Police Department arrested Flagler at her home and

4
 1 transported her to the Fulton County Supreme Court for the

2 March 7, 2007 hearing. Justice Richard T. Aulisi appointed

3 a Fulton County Public Defender to represent Flagler at the

4 material witness hearing. At the hearing, Flagler told

5 Justice Aulisi that she had been cooperative with the

6 District Attorney’s office and had never said she would not

7 come to court. Trainor never told Justice Aulisi about

8 Flagler’s phone call from the prior day, and despite her

9 communications, Trainor recommended that the court remand

10 her into custody. After the hearing, the Fulton County

11 Sheriff’s Department took Flagler back into custody and held

12 her overnight without bail. She appeared before the County

13 Court the following morning, and was released on bail.

14 The Sheriff’s Department confiscated Flagler’s cell

15 phone when the Department took custody of Flagler. Flagler

16 alleged that the Sheriff’s Department gave her cell phone to

17 Trainor and that someone in the District Attorney’s office

18 unlawfully tried to access Flagler’s voicemail. Flagler

19 also alleged that Trainor has refused to return her cell

20 phone, even though Becker’s conviction is final.

21 C. Trainor’s Other Alleged Wrongful Acts.

22 Flagler also alleged that Trainor made a defamatory

5
 1 statement against her by falsely proclaiming to the press

2 that she had been “hiding out,” and that Trainor persuaded

3 Becker’s ex-wife to record telephone calls with Flagler

4 without her consent.

5 D. Procedural History.

6 Trainor moved to dismiss Flagler’s complaint solely on

7 the basis of absolute prosecutorial immunity. Mot. to

8 Dismiss 1-5, Flagler v. Trainor, No. 08-cv-138 (N.D.N.Y.

9 Jan. 14, 2009), ECF No. 10-7. The District Court granted

10 the motion, dismissing all of Flagler’s federal claims and

11 declining to consider Flagler’s remaining state claims

12 without a federal counterpart. Flagler, 2010 WL 3724015, at

13 *4-6. Flagler filed a timely notice of appeal, and we now

14 affirm in part and vacate and remand in part.

15 II.

16 A. Absolute Prosecutorial Immunity.2

17 Prosecutors are generally immune from liability under

18 42 U.S.C. § 1983 for conduct in furtherance of prosecutorial

2
In this case, the standard of review is well known and
not at issue. “We review de novo a district court’s grant of a
motion to dismiss pursuant to Rule 12(b)(6), accepting all
factual allegations in the complaint as true and drawing all
inferences in the plaintiff’s favor.” Legnani v. Alitalia Linee
Aeree Italiane, S.P.A., 274 F.3d 683, 685 (2d Cir. 2001). We
will “affirm only if it appears beyond doubt that the plaintiff
can prove no set of facts in support of [her] claim which would
entitle [her] to relief.” Id. (internal quotation marks omitted)
(alterations in original).

6
 1 functions that are intimately associated with initiating or

2 presenting the State’s case. Imbler v. Pachtman, 424 U.S.

3 409, 427-28 (1976). Section 1983 immunity is grounded in

4 the prosecutor’s common law tort immunity. That immunity

5 arises from the “concern that harassment by unfounded

6 litigation would cause a deflection of the prosecutor’s

7 energies from his public duties, and the possibility that he

8 would shade his decisions instead of exercising the

9 independence of judgment required by his public trust.” Id.

10 at 423. “[I]f the prosecutor could be made to answer in

11 court each time [an aggrieved defendant] charged him with

12 wrongdoing, his energy and attention would be diverted from

13 the pressing duty of enforcing the criminal law.” Id. at

14 425. Immunity protects the proper functioning of the

15 prosecutor’s office by insulating the exercise of

16 prosecutorial discretion. Kalina v. Fletcher, 522 U.S. 118,

17 125 (1997).

18 Yet absolute prosecutorial immunity is not without its

19 costs. In Imbler, the Supreme Court explained:

20 To be sure, this immunity does leave the genuinely
21 wronged defendant without civil redress against a
22 prosecutor whose malicious or dishonest action
23 deprives him of liberty. But the alternative of
24 qualifying a prosecutor’s immunity would disserve
25 the broader public interest. It would prevent the

7
 1 vigorous and fearless performance of the
2 prosecutor’s duty that is essential to the proper
3 functioning of the criminal justice system.

4 424 U.S. at 427-28; see also Gregoire v. Biddle, 177 F.2d

5 579, 581 (2d Cir. 1949). Thus, while absolute prosecutorial

6 immunity may leave an injured party without a remedy,

7 society has found more benefit in insulating the exercise of

8 prosecutorial discretion.

9 That being said, the Supreme Court has clarified that

10 immunity is not a function of the prosecutor’s title.

11 Kalina, 522 U.S. at 125, 127. Rather, it attaches to

12 prosecutorial functions that are intimately associated with

13 initiating or presenting the State’s case. Id. Prosecutors

14 are absolutely immune from suit only when acting as

15 advocates and when their conduct involves the exercise of

16 discretion. Id. at 127. Thus, the Supreme Court has found

17 prosecutors absolutely immune from suit for alleged

18 misconduct during a probable cause hearing,3 in initiating a

19 prosecution,4 and in presenting the State’s case.5 On the

20 other hand, the Court has withheld absolute immunity for

3
Burns v. Reed, 500 U.S. 478, 492 (1991).
4
Imbler v. Pachtman, 424 U.S. 409, 431 (1976).
5
Id.

8
 1 conduct unrelated to advocacy, such as giving legal advice,6

2 holding a press conference,7 or acting as a complaining

3 witness.8

4 The task then is to determine whether each asserted

5 wrongful act falls within the zone of Trainor’s absolute

6 immunity as a prosecutor.

7 1. False Statements Made in Support of a Material
8 Witness Order.

9 Flagler contends that by making sworn factual

10 statements in support of the order, Trainor was acting as a

11 complaining witness rather than as an advocate. In Kalina

12 v. Fletcher, the Supreme Court held that a prosecutor was

13 not absolutely immune from liability for making false

14 statements in support of an arrest warrant. There, the

15 prosecutor provided a “Certification for Determination of

16 Probable Cause” that summarized the evidence supporting the

17 arrest warrant. 522 U.S. at 121. Rather than attaching to

18 the motion an affidavit from a witness with personal

19 knowledge of facts, the prosecutor “personally vouched for

20 the truth of the facts set forth in the certification.” Id.

6
Burns, 500 U.S. at 492-96.
7
Buckley v. Fitzsimmons, 509 U.S. 259, 276-78 (1993).
8
Kalina v. Fletcher, 522 U.S. 118, 129-31 (1997).

9
 1 The certification included two inaccurate factual

2 statements, id.; the charges against the defendant were

3 eventually dismissed, id. at 122. The former defendant sued

4 the prosecutor under Section 1983 “based on [the

5 prosecutor’s] alleged violation of his constitutional right

6 to be free from unreasonable seizures.” Id. The prosecutor

7 moved for summary judgment based on absolute prosecutorial

8 immunity. The district court denied immunity and both the

9 Ninth Circuit and Supreme Court affirmed. Id. at 122-23.

10 After surveying the history of prosecutorial immunity,

11 the Supreme Court recognized immunity’s two important

12 functions: (1) “protecting the prosecutor from harassing

13 litigation that would divert [the prosecutor’s] time and

14 attention from his official duties”; and (2) “the interest

15 in enabling [the prosecutor] to exercise independent

16 judgment when deciding which suits to bring and in

17 conducting them in court.” Id. at 125 (internal quotation

18 omitted). The Court recognized that the second

19 function—insulating the prosecutor’s discretion when acting

20 as advocate—was of “primary importance.” Id. But sworn

21 statements in support of an arrest warrant were not

10
 1 intimately associated with a prosecutor’s duty to advocate.9

2 Rather, offering sworn statements was an “act that any

3 competent witness might have performed.” Id. at 129-30.

4 The prosecutor was acting as a complaining witness, not as

5 an advocate; “[t]estifying about facts is the function of

6 the witness, not of the lawyer.” Id. at 130. The Court

7 also noted that “neither federal nor state law made it

8 necessary for the prosecutor to make [the factual

9 assertion].” Id. at 129.

10 Kalina is easily distinguishable from the case before

11 us. There are key differences between arrest warrants and

12 material witness orders. For one, in New York, only a

13 prosecutor or defense attorney can seek a material witness

14 order. N.Y. Crim. Proc. Law § 620.20(1); see also N.Y.

15 Crim. Proc. Law § 620.30(1) (requiring the “applicant” to

16 make a written, sworn application in order to commence

17 material witness proceedings; the applicant is either the

18 prosecutor or defense attorney). Further, an arrest warrant

19 is one of the first steps required to begin a criminal

9
The Court held that preparing and drafting of the
certification was protected by absolute immunity because it was
intimately associated with a prosecutors’s advocacy. It was only
the act of “personally attesting to the truth of the averments”
that went beyond the prosecutor’s duty to advocate. Kalina, 522
U.S. at 129.

11
 1 investigation. A material witness order, in contrast, may

2 issue only when a prosecution is ready for trial.

3 Seeking a material witness order is within the

4 prosecutor’s “function” as an advocate. A prosecutor

5 employs prosecutorial discretion when determining whether to

6 seek such an order. See Betts v. Richard, 726 F.2d 79, 79

7 (2d Cir. 1984)10; Daniels v. Kieser, 586 F.2d 64, 69 (7th

8 Cir. 1978). It is an act “intimately associated” with

9 presenting the State’s case. The material witness order

10 ensures the attendance of a “material” witness at trial,

11 which often makes or breaks the prosecutor’s case.

12 Nevertheless, Flagler argues that the Third and Ninth

13 Circuits have denied absolute prosecutorial immunity for

10
In Betts v. Richard, 726 F.2d 79 (2d Cir. 1983), we held
that a prosecutor who had obtained a writ of capias (essentially
the Connecticut equivalent of a material witness warrant) to
ensure the presence of the complaining witness at a criminal
trial was immune from liability under § 1983. It is arguable
that Betts is controlling authority in this circuit, subject only
to whether Kalina abrogates its precedential force. Because we
believe that absolute immunity applies even on the analysis set
forth in Kalina, and would reach the same result even if Betts
had never been decided, we do not need to decide whether Kalina
sets forth a sufficiently novel analysis to require us to rethink
the Betts precedent. See Union of Needletrades, Indus. & Textile
Employees v. INS, 336 F.3d 200, 210 (2d Cir. 2003) (setting forth
the standard for when we may disregard circuit authority in light
of intervening Supreme Court precedent). It follows from our
analysis that while the Betts court did not have the benefit of
Kalina, and applied a somewhat different framework derived from
earlier cases, its result would survive any rethinking that
Kalina might require.

12
 1 wrongdoing in connection with prosecutorial functions.

2 Flagler, however, fails to recognize that the wrongdoing in

3 those cases was either administrative in nature11 or akin to

4 the function of law enforcement officers in protecting the

5 public safety by making a complaint of wrongdoing.12

6 Therefore, notwithstanding Flagler’s arguments to the

7 contrary, we find Trainor absolutely immune for making

8 alleged false statements in support of a material witness

9 order and warrant.

10 2. Alleged Defamatory Statements Made to the Press.

11 Flagler argues that Trainor defamed her by falsely

11
Odd v. Malone, 538 F.3d 202, 213, 215-16 (3d Cir. 2008).
In Odd, the Third Circuit held that keeping the court informed
about the status of a criminal proceeding (which could affect a
material witness’s continued detention) was an administrative
task. The court recognized, however, that securing a material
witness’s attendance at trial was shielded by absolute immunity.
Id. at 212. That is the case before us; Flagler challenges
Trainor’s conduct that was intimately associated with his
securing her attendance at trial as a material witness.
12
In Cruz v. Kauai County, the Ninth Circuit denied
absolute immunity because the prosecutor’s conduct—swearing to
facts in support of a bail revocation—was akin to conduct of a
complaining witness, even though Hawaii law restricted authority
to seek bail revocation to a prosecutor. 279 F.3d 1064, 1067-68
(9th Cir. 2002). We recognize that our holding may be in tension
with Cruz. In Cruz, however, the district court granted only
qualified immunity, so the Ninth Circuit’s discussion about
absolute immunity is largely dicta. And, we believe that in
seeking a material witness warrant, despite signing an affidavit,
the prosecutor is intimately involved in advocacy—assembling and
presenting the State’s case.

13
 1 stating to the press that she had been “hiding out” before

2 the trial. Trainor only claimed absolute immunity from

3 liability for this claim; he did not challenge the substance

4 of the pleading.

5 In Buckley v. Fitzsimmons, the Supreme Court held that

6 “statements to the media are not entitled to absolute

7 immunity.” 509 U.S. 259, 277 (1993). The Court explained

8 that while absolute immunity shields statements made during

9 a judicial proceeding, it does not shield statements made

10 outside court. Id. The Court reasoned: “The conduct of a

11 press conference does not involve the initiation of a

12 prosecution, the presentation of the State’s case in court,

13 or actions preparatory for these functions.” Id. at 278.

14 The Court recognized that while statements to the press may

15 be an “integral part” of the prosecutor’s job, the duty is

16 no different than that for other executives who deal with

17 the press and enjoy only qualified immunity. Id. Because

18 absolute immunity does not shield statements made to the

19 press, the district court erred by dismissing Flagler’s

20 defamation claim on account of absolute immunity.

21

22

14
 1 3. Alleged Accessing of a Person’s Voicemail without
2 Consent and Persuading Becker’s Ex-Wife to Record
3 Telephone Calls.

4 We have no trouble concluding that Trainor is not

5 absolutely immune from allegedly accessing, or ordering

6 someone to access, Flagler’s voicemail without her consent,

7 or from persuading Becker’s ex-wife to record telephone

8 calls with Flagler.13 The alleged misconduct is akin to

9 investigatory acts, and absolute immunity does not shield

10 investigatory acts. See, e.g., Van de Kamp v. Goldstein,

11 555 U.S. 335, 342 (2009); Imbler, 424 U.S. at 430; Pierson

12 v. Ray, 386 U.S. 547, 557 (1967). As a result, the district

13 court erred by dismissing Flagler’s claims on this ground.

14 4. Alleged Withholding/Preserving of Evidence After a
15 Criminal Prosecution Has Run its Course.

16 Trainor argues that by withholding Flagler’s cell

17 phone, he is preserving evidence and that preservation of

18 evidence is intimately associated with presenting the

19 State’s case. In Parkinson v. Cozzolino, we held that a

20 prosecutor is absolutely immune for withholding/preserving

13
We take no position on whether these acts occurred or
whether they would constitute actionable misconduct if they did.
In general, so long as one party to a conversation consents to
its recording, the recording is lawful under both New York and
federal law. See N.Y. Crim. Proc. Law § 700.05; N.Y. Penal Law
§ 250.00; United States v. White, 401 U.S. 745 (1971).

15
 1 evidence to be used in connection with a criminal

2 prosecution, and that immunity extends throughout a

3 subsequent appeal. 238 F.3d 145, 152 (2d Cir. 2001). We

4 made no determination, however, “as to when such immunity

5 ends.” Id.

6 We recognize the inherent conflict between Flagler’s

7 argument and a prosecutor’s duty to defend a conviction. If

8 we agreed with Flagler, absolute immunity would end once the

9 time to appeal and collaterally attack a conviction had run.

10 But some collateral attacks, like actual innocence, have no

11 statute of limitations. And as technology advances, we

12 learn of new tests and tools that make fact finding more

13 precise - technologies once thought inconceivable.

14 Therefore, without fuller development of the issue by

15 thoughtful briefing and factual development in the district

16 court, we are unwilling to draw a line as to how long

17 absolute immunity shields a prosecutor for

18 withholding/preserving evidence.

19 Rather, we recognize that Trainor did not raise

20 Cozzolino below. We therefore vacate and remand the

21 district court’s order and judgment so it may consider

22 whether Trainor is absolutely immune for preserving

16
 1 evidence—Flagler’s cell phone—after Becker’s conviction

2 became final. Of course, the district court need not

3 address this issue if it deems summary judgment appropriate

4 on the basis of qualified immunity.

5 III.

6 We AFFIRM the district court to the extent it found

7 Trainor absolutely immune from Flagler’s claim that he

8 violated her constitutional rights by making false

9 statements in support of a material witness order. We

10 VACATE and REMAND the rest of the order and judgment because

11 absolute immunity does not immunize prosecutors from

12 liability for making defamatory statements to the press,

13 accessing a person’s voicemail without consent, or

14 persuading a party to a conversation to record its contents;

15 and, the district court should consider in the first

16 instance whether Trainor is absolutely immune for continuing

17 to withhold/preserve evidence—Flagler’s cell phone.

17
 1 CALABRESI, Circuit Judge, concurring:

2 I agree completely with the majority opinion and join

3 it fully. I write separately because our Court has recently

4 decided Collazo v. Pagano, 656 F.3d 131 (2d Cir. 2011)

5 (another opinion with which I agree completely), whose

6 relation to this case is, I think, worth underscoring.

7 In Collazo, we held that claims dismissed on the ground

8 of absolute prosecutorial immunity are considered

9 “frivolous” for purposes of 28 U.S.C. § 1915(g), the

10 “three-strikes” provision.1 Id. at 134. We expressly

11 limited our holding to cases in the “readily distinguishable

12 heartland of immune prosecutorial conduct that

13 [is] . . . ‘intimately associated with the judicial phase of

1
Section 1915(g) provides:

In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding
under this section if the prisoner has, on 3 or more
prior occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court
of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of
serious physical injury.

28 U.S.C. § 1915(g).
 1 the criminal process.’” Id. n.2 (citing Burns v. Reed, 500

2 U.S. 478, 486 (1991)). We also excluded “cases in which the

3 complaint is not dismissed sua sponte pursuant to 28 U.S.C.

4 § 1915(g).” Id.

5 I write to clarify the following. A court may dismiss

6 a claim sua sponte on three grounds pursuant to 28 U.S.C.

7 § 1915(e)(2)(B): If the action is frivolous or malicious,

8 fails to state a claim on which relief may be granted, or

9 seeks monetary relief from a defendant who is immune.2 The

10 last of these grounds, immunity, would be a basis for

11 dismissal under § 1915(e)(2) even if the claim in the

12 complaint were a serious one and anything but easy. In

13 other words, if a dismissal occurred pursuant to

14 § 1915(e)(2) on absolute immunity grounds, it could not,

15 without more, be per se frivolous for purposes of the

2
The criteria for accumulating strikes under § 1915(g)
track only two of the three grounds for dismissal under
§ 1915(e)(2)(B). They do not include immunity. See 28
U.S.C. § 1915(g). Nonetheless, we have held that under
certain circumstances, a district court making the
"three-strikes" determination under § 1915(g) may deem a
prior dismissal on account of immunity as frivolous.
Collazo, 656 F.3d at 134, Mills v. Fischer, 645 F.3d 176,
177 (2d Cir. 2011).

2
 1 three-strikes determination under § 1915(g). Conversely,

2 § 1915(g)-the basis for dismissal expressly mentioned in

3 Collazo-applies only where the district court finds that a

4 prisoner previously has brought three or more frivolous

5 lawsuits. This means that a dismissal citing § 1915(g) must

6 necessarily entail a finding, whether implicit or explicit,

7 that at least three former claims were frivolous. And a

8 dismissal based on immunity will not be frivolous unless the

9 district court making the § 1915(g) determination deems the

10 former case to fall within the “distinguishable heartland of

11 immune prosecutorial conduct.” Collazo, 656 F.3d at 134

12 n.2.

13 The case before us is a perfect example of a claim of

14 absolute immunity that, though it loses (I of course refer

15 to the portion of our opinion affirming the district court’s

16 dismissal), is anything but frivolous.

17 Plaintiff-Appellant’s claim that absolute immunity does not

18 apply, relies, inter alia, on the Ninth Circuit opinion in

19 Cruz v. Kauai Cnty., 279 F.3d 1064 (9th Cir. 2002), and, as

20 our opinion points out, our decision, whether or not in

21 conflict with Cruz, is at least in tension with it. To

3
 1 suggest, as Appellant does, that Cruz should guide us, is

2 not frivolous and is not made frivolous by the fact that we

3 rejected the suggestion.

4 The difference between a dismissal on absolute immunity

5 grounds pursuant to § 1915(e)(2)(iii), and a dismissal as

6 the Court in Collazo required, pursuant to § 1915(g), is

7 crucial. The first necessarily allows a claimant to assert

8 that the claim was not frivolous in the circumstances of

9 that case, and, hence, does not justify a strike for the

10 purposes of the three-strikes finding. The second, as

11 Collazo held, forecloses that argument.

4