Thomas Lee Goldstein v. City of Long Beach

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 THOMAS LEE GOLDSTEIN,
Plaintiff-Appellee,
v.
CITY OF LONG BEACH; COUNTY OF No. 06-55537LOS ANGELES; JOHN HENRY MILLER;
WILLIAM COLLETE; LOGAN WREN; D.C. No.
and WILLIAM MACLYMAN, CV 04-09692-AHM
Defendants, OPINION
and
JOHN VAN DE KAMP and CURT
LIVESAY,
Defendants-Appellants. 
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Argued and Submitted
March 5, 2007—Pasadena, California
Filed March 28, 2007
Before: Stephen Reinhardt and Robert R. Beezer,
Circuit Judges, and Thelton E. Henderson,* District Judge.
Opinion by Judge Henderson
*The Honorable Thelton E. Henderson, Senior United States District
Judge for the Northern District of California, sitting by designation.
3537

-- 1 of 12 --

COUNSEL
Steven J. Renick, Manning & Marder, Kass, Ellrod, Ramirez
LLP, Los Angeles, California, for the defendants-appellants.
Ronald O. Kaye, David S. McLane, Marilyn E. Bednarski,
Kaye, McLane & Bednarski, LLP, Pasadena, California, for
the plaintiff-appellee.
OPINION
HENDERSON, District Judge:
In this case, we are asked to determine whether an elected
district attorney and his chief deputy are entitled to absolute
immunity from suit based on allegations that they failed to
develop policies and procedures, and failed to adequately
train and supervise their subordinates, to fulfill their constitu-
tional obligation of ensuring that information regarding jail-
house informants was shared among prosecutors in their
3540 GOLDSTEIN v. VAN DE KAMP

-- 2 of 12 --

office. See Giglio v. United States, 405 U.S. 150, 154 (1972).
For the reasons discussed in this opinion, we hold that they
are not, and we therefore affirm the opinion of the district
court.
I. Background
After serving twenty-four years in prison, Plaintiff-
Appellee Thomas Lee Goldstein was released on April 2,
2004, following this Court’s affirmance of the district court’s
order granting Goldstein’s petition for habeas relief. Goldstein
has now filed a complaint seeking damages under 42 U.S.C.
§ 1983 based on his wrongful conviction for murder.
Although he has sued several individuals and entities, includ-
ing the City of Long Beach, the County of Los Angeles, and
four officers of the Long Beach Police Department, only his
claims against Defendants-Appellants John Van De Kamp
and Curt Livesay are at issue in this appeal.1 Van De Kamp
was the Los Angeles County District Attorney at the time
Goldstein was prosecuted and convicted, and Livesay was his
chief deputy.
The claims relevant to this appeal stem from the testimony
at Goldstein’s 1980 criminal trial of Edward Floyd Fink, a
jailhouse informant. Fink testified that Goldstein confessed
the murder to him while both were being detained in the Long
Beach City Jail. Goldstein alleges that this testimony was
false, as was Fink’s testimony that he was not receiving any
benefits for testifying against Goldstein and had never
received any benefits for assisting law enforcement in the
past. Fink had, in fact, been acting as an informant for the
Long Beach Police Department for several years and had
received multiple reduced sentences in return. Although other
1A different panel of this Court affirmed the district court’s denial of a
motion to dismiss brought by the County of Los Angeles. Goldstein v.
City of Long Beach, 2006 WL 3206148, Case No. 05-56243 (9th Cir. Nov.
6, 2006).
3541 GOLDSTEIN v. VAN DE KAMP

-- 3 of 12 --

deputy district attorneys in the Los Angeles County District
Attorney’s Office were aware of the benefits provided to Fink
in exchange for his testimony against Goldstein, this critical
impeachment evidence was never shared with the deputy dis-
trict attorneys prosecuting Goldstein’s case, allegedly because
no system of sharing such information existed in the District
Attorney’s Office at the time and because deputy district
attorneys were not adequately trained or supervised to share
such information. As a result, evidence that could have been
used to impeach Fink was not shared with Goldstein’s defense
counsel, in violation of Brady v. Maryland, 373 U.S. 83, 87
(1963).
Several years prior to Goldstein’s arrest and conviction, the
Supreme Court explained that prosecutors’ offices have a con-
stitutional obligation to establish “procedures and regulations
. . . to insure communication of all relevant information on
each case [including promises made to informants in
exchange for testimony in that case] to every lawyer who
deals with it.” Giglio, 405 U.S. at 154. Thus, Goldstein
alleges that Van De Kamp and Livesay are liable under
§ 1983 because, as administrators of the Los Angeles County
District Attorney’s Office, they violated his constitutional
rights by purposefully or with deliberate indifference failing
to create a system that would satisfy this obligation. Goldstein
further alleges that Van De Kamp and Livesay violated his
constitutional rights by failing to adequately train and super-
vise deputy district attorneys to ensure that they shared infor-
mation regarding jailhouse informants with their colleagues.
Van De Kamp and Livesay sought dismissal of the claims
against them, under Federal Rule of Civil Procedure 12(b)(6),
based on an assertion of absolute prosecutorial immunity. The
district court denied their motion on March 8, 2006, finding
that Van De Kamp and Livesay’s alleged conduct was admin-
istrative rather than prosecutorial and, therefore, not entitled
to the protections of absolute immunity. Van De Kamp and
3542 GOLDSTEIN v. VAN DE KAMP

-- 4 of 12 --

Livesay filed a timely notice of interlocutory appeal on April
5, 2006.
II. Jurisdiction and Standard of Review
Although we do not generally have jurisdiction over inter-
locutory appeals of denials of motions to dismiss, we do have
jurisdiction over such appeals where the district court denied
a claim of absolute immunity. Mitchell v. Forsyth, 472 U.S.
511, 525 (1985). Such denials are immediately appealable
because “the essence of absolute immunity is its possessor’s
entitlement not to have to answer for his conduct in a civil
damages action,” an entitlement that “is effectively lost if a
case is erroneously permitted to go to trial.” Id. at 525-26.
Whether a public official is entitled to absolute immunity
is a question of law that is reviewed de novo. Botello v. Gam-
mick, 413 F.3d 971, 975 (9th Cir. 2005), cert. denied, 126
S. Ct. 1419 (2006). Because this appeal stems from a ruling
on a motion to dismiss for failure to state a claim, we assume
all factual allegations in the complaint to be true. Id.
In addition, “[t]o decide whether absolute immunity
applies, we assume without deciding that [Goldstein] has
alleged a deprivation of a constitutional right under § 1983.”
Genzler v. Longanbach, 410 F.3d 630, 643-44 (9th Cir. 2005),
cert. denied, 126 S. Ct. 737 (2005) (citing Buckley v. Fitzsim-
mons, 509 U.S. 259, 261 (1993)). Whether the alleged con-
duct is sufficient to state a claim for liability under § 1983 is
therefore not before the Court at this time.
III. Discussion
Courts have recognized two types of immunity from suit
under 42 U.S.C. § 1983: qualified immunity and absolute
immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993).
Only absolute immunity is at issue in this appeal, as Van De
Kamp and Livesay failed to make an alternative argument in
3543 GOLDSTEIN v. VAN DE KAMP

-- 5 of 12 --

the district court that the claims against them should be dis-
missed based on qualified immunity.
[1] As its name implies, absolute immunity is an absolute
bar to liability. Qualified immunity, on the other hand, shields
officials from suits for damages only when their alleged con-
duct either does not violate a constitutional right or violates
a constitutional right that was not “clearly established,” mean-
ing that a reasonable person in the official’s position would
not have known “his conduct was unlawful in the situation he
confronted.” Saucier v. Katz, 533 U.S. 194, 201-02 (2001).
“The presumption is that qualified rather than absolute
immunity is sufficient to protect government officials in the
exercise of their duties.” Burns v. Reed, 500 U.S. 478, 486-87
(1991). The official seeking absolute immunity therefore
bears the burden of demonstrating that it is warranted, and the
Supreme Court has been “quite sparing in its recognition of
claims to absolute official immunity.” Forrester v. White, 484
U.S. 219, 224 (1988).
[2] A prosecutor is entitled to absolute immunity under
§ 1983 for conduct that is “intimately associated with the judi-
cial phase of the criminal process,” Imbler v. Pachtman, 424
U.S. 409, 430 (1976), and “occur[s] in the course of his [or
her] role as an advocate for the State,” Buckley, 509 U.S. at
273. However, conduct is not shielded by absolute immunity
simply because it is performed by a prosecutor. Id. To the
contrary, a prosecutor is entitled only to qualified immunity
“if he or she is performing investigatory or administrative
functions, or is essentially functioning as a police officer or
detective.” Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.
2003) (citing Buckley, 509 U.S. at 273). Thus, when determin-
ing whether absolute immunity applies, courts must examine
“the nature of the function performed, not the identity of the
actor who performed it.” Forrester, 484 U.S. at 229.
Applying this functional analysis, the Supreme Court has
held that prosecutors are absolutely immune from § 1983 lia-
3544 GOLDSTEIN v. VAN DE KAMP

-- 6 of 12 --

bility for decisions to initiate a particular prosecution, to pre-
sent knowingly false testimony at trial, and to suppress excul-
patory evidence. Imbler, 424 U.S. at 431 & n.34. Prosecutors
also enjoy absolute immunity for decisions not to prosecute
particular cases, Roe v. City & County of San Francisco, 109
F.3d 578, 583-84 (9th Cir. 1997), and for gathering evidence
to present to the trier of fact, as opposed to gathering evidence
to determine whether probable cause exists to arrest, Broam,
320 F.3d at 1033.
On the other hand, prosecutors do not have absolute immu-
nity “for advising police officers during the investigative
phase of a criminal case, performing acts which are generally
considered functions of the police, acting prior to having
probable cause to arrest, or making statements to the public
concerning criminal proceedings.” Botello, 413 F.3d at 976-
77 (citing Burns, 500 U.S. at 493, and Buckley, 509 U.S. at
274-78). Nor do government officials have absolute immunity
“for conduct involving termination, demotion and treatment
of employees.” Id. at 976 (citing Forrester, 484 U.S. at 228-
30, and Meek v. County of Riverside, 183 F.3d 962, 967 (9th
Cir. 1999)). For example, we have held that absolute immu-
nity does not apply to a District Attorney’s decisions to
demote or fail to promote a deputy attorney, to reassign the
deputy to a different department, or to bar the deputy from
prosecuting any future murder cases. Ceballos v. Garcetti,
361 F.3d 1168, 1184 (9th Cir. 2004), rev’d on other grounds,
126 S. Ct. 1951 (2006). Unlike the removal of a deputy attor-
ney from a particular case, which falls “within the District
Attorney’s prosecutorial function” because it is “intimately
associated with the judicial phase of the criminal process,” we
determined that these challenged actions were “personnel
decisions” falling “squarely within the District Attorney’s
administrative function. Even the decision not to reassign
Ceballos to future murder cases was a personnel decision, and
was unrelated to any particular prosecution or ongoing judi-
cial proceeding.” Id. (citing Broam, 320 F.3d at 1028).
3545 GOLDSTEIN v. VAN DE KAMP

-- 7 of 12 --

[3] Neither the Supreme Court nor this Court has consid-
ered whether claims regarding failure to train, failure to super-
vise, or failure to develop an office-wide policy regarding a
constitutional obligation, like the one set forth in Giglio, are
subject to absolute immunity. The closest we have come was
in Ybarra v. Reno Thunderbird Mobile Home Village, 723
F.2d 675 (9th Cir. 1984), a case involving allegations that a
supervising district attorney was “liable under § 1983 for fail-
ure to train his subordinate . . . to preserve exculpatory evi-
dence, or in the alternative, for permitting a policy of not
preserving exculpatory evidence to exist in the District Attor-
ney’s Office.” Id. at 680. We held that the district attorney
would enjoy absolute prosecutorial immunity for any allega-
tions based on his direct involvement in the plaintiff’s case.
Id. However, we did not reach the question of whether abso-
lute immunity would similarly protect the district attorney on
the supervisory claim or on the claim that he failed to develop
an appropriate policy because we concluded that the evidence
“fail[ed] to give rise to any inference” that the district attorney
did not adequately train or supervise his subordinates, or that
he failed to develop an appropriate policy of preserving evi-
dence. Id. at 680-81.
We also considered supervisory liability of a district attor-
ney in Genzler, 410 F.3d 630. In that case, we held that, like
prosecuting attorneys with direct responsibility for a case,
supervisory defendants are entitled to absolute immunity for
“conduct closely related to prosecutorial decisions in the trial
phase of [the plaintiff’s] case,” such as a claim “that the
supervisory defendants knew that [the prosecuting attorney]
had granted [a witness] immunity in exchange for perjured
testimony favorable to the prosecution,” or a claim “that the
supervisory defendants were aware of and condoned a ploy to
use [a witness’s] perjured testimony to force the recusal of
[the plaintiff’s] counsel of choice.” Id. at 644.
However, unlike the plaintiff in Genzler, Goldstein does
not contend that Van De Kamp and Livesay are liable because
3546 GOLDSTEIN v. VAN DE KAMP

-- 8 of 12 --

they knew about, condoned, or directed any specific trial deci-
sions made by the deputy district attorneys prosecuting Gold-
stein’s criminal case. Goldstein does not, for instance, assert
that Van De Kamp and Livesay knew that Fink had been
granted immunity for perjured testimony in Goldstein’s par-
ticular case, or that they condoned withholding such informa-
tion from Goldstein’s criminal defense attorney. Instead,
Goldstein rests his theory of liability on Van De Kamp and
Livesay’s alleged failure to develop a policy of sharing infor-
mation regarding jailhouse informants within the District
Attorney’s Office and on their alleged failure to provide ade-
quate training and supervision on this issue.
[4] Van De Kamp and Goldstein are correct that our hold-
ing in Roe, 109 F.3d 578, establishes that absolute immunity
protects not only decisions made during an individual prose-
cution but may also apply to a policy decision. However, they
reach too broadly in urging us to apply Roe to this case. Roe
concerned challenges to a policy not to prosecute cases with-
out corroborating evidence where a particular police officer
was the sole witness to the alleged offense. Id. at 582. We
held that a decision not to prosecute was intimately associated
with the judicial phase of the criminal process and, therefore,
entitled to absolute immunity, and we agreed with the Court
of Appeals for the District of Columbia Circuit that “there is
‘no meaningful distinction between a decision on prosecution
in a single instance and decisions on prosecutions formulated
as a policy for general application.’ ” Id. at 583 (quoting
Haynesworth v. Miller, 820 F.2d 1245, 1269 (D.C. Cir.
1987)).
[5] The determinative factor in Roe was that the challenged
policy involved the discretionary decision of whether Roe was
a credible enough witness so that prosecutors could “prose-
cute his cases without corroborating evidence in good con-
science or with a reasonable expectation of winning a
conviction. . . . This kind of witness evaluation falls entirely
within a prosecutor’s judicial function regardless of whether
3547 GOLDSTEIN v. VAN DE KAMP

-- 9 of 12 --

one case or a line of cases is at issue.” Id. at 584. Similarly,
the challenged policy in Haynesworth also related to an
alleged policy regarding which cases to prosecute: “Appel-
lants aver that they were victimized by a policy of retaliatory
prosecution — a practice of pursuing criminal charges against
individuals who have endured wrongful arrests, solely
because they refuse to waive civil suits against the arresting
officers.” Haynesworth, 820 F.2d at 1247. Thus, while Roe
and Haynesworth demonstrate that a policy decision may be
protected by absolute immunity, the critical factor remains the
nature of the challenged policy and whether it falls “within a
prosecutor’s judicial function” or, instead, is part of a prose-
cutor’s exercise of administrative or investigative functions.
Roe, 109 F.3d at 584.
[6] In this case, Van De Kamp and Livesay contend that the
challenged conduct was prosecutorial in function even if it
may have been administrative in form. We disagree. In the
context of determining whether absolute immunity applies,
“prosecutorial” refers only to conduct that is “intimately asso-
ciated with the judicial phase of the criminal process.” Imbler,
424 U.S. at 430. Thus, an act is not “prosecutorial” simply
because it has some connection with the judicial process or
may have some impact at the trial level. Were that the rule,
then prosecutors would be absolutely immune from any suit
because all actions taken by prosecutors arguably have some
connection to the judicial process — even those, such as per-
sonnel decisions, that we have explicitly held fall outside the
protections of absolute immunity. E.g., Ceballos, 361 F.3d at
1184. As the Supreme Court has cautioned, “[a]lmost any
action by a prosecutor, including his or her direct participation
in a purely investigative activity, could be said to be in some
way related to the ultimate decision whether to prosecute, but
we have never indicated that absolute immunity is that expan-
sive.” Burns, 500 U.S. at 495.
[7] While it may be possible for an act to be prosecutorial
in function but administrative in form, we need not decide
3548 GOLDSTEIN v. VAN DE KAMP

-- 10 of 12 --

whether such conduct would be entitled to absolute immunity
because we conclude that Goldstein’s allegations are adminis-
trative and not prosecutorial in function.2 Van De Kamp and
Livesay correctly argue that the specific duty to share infor-
mation regarding jailhouse informants arose only because of
their roles as prosecutors. However, although the challenged
conduct may thus be “to some degree related to trial prepara-
tion,” Van De Kamp and Livesay have failed to demonstrate
the required “close association . . . [with] the judicial phase
of [Goldstein’s] criminal trial,” Genzler, 410 F.3d at 643, or
to clearly established prosecutorial functions such as deciding
whether to prosecute a particular case. See also Burns, 500
U.S. at 495 (requiring courts to “inquire whether the prosecu-
tor’s actions are closely associated with the judicial process”);
Imbler, 424 U.S. at 430 (requiring that the conduct be “inti-
mately associated with the judicial phase of the criminal pro-
cess”). Administrative work cannot be “retroactively
transform[ed]” into the prosecutorial simply because “the evi-
dence this work produced” might affect whether a prosecutor
decides to bring a case or, if a case is brought, how the evi-
dence is presented at trial. Buckley, 509 U.S. at 275-76. The
allegations against Van De Kamp and Livesay, which involve
2We note that the Courts of Appeals for the Second and Third Circuits
reached similar conclusions, albeit in a different context, in Walker v. City
of New York, 974 F.2d 293 (2d Cir. 1992) and Carter v. City of Philadel-
phia, 181 F.3d 339 (3d Cir. 1999). Both cases involved challenges to a
municipality’s liability, which in turn involved questions of whether the
alleged conduct was prosecutorial or administrative in function. The Sec-
ond Circuit held that allegations regarding a “decision not to supervise or
train [assistant district attorneys] on Brady and perjury issues” raised chal-
lenges to the district attorney’s “acts as the manager of the district attor-
ney’s office” rather than to the district attorney’s actions “ ‘in a quasi-
judicial capacity.’ ” Walker, 974 F.2d at 301 (quoting Baez v. Hennessy,
853 F.2d 73, 77 (2d Cir. 1988)). Similarly, the Third Circuit held that
“policies relating to training, supervision and discipline” involved “not
prosecutorial, but administrative” functions. Carter, 181 F.3d at 353; see
also id. at 355-56 (declining to apply absolute prosecutorial immunity
because the challenged conduct was “administrative, rather than prosecu-
torial”).
3549 GOLDSTEIN v. VAN DE KAMP

-- 11 of 12 --

their failure to promulgate policies regarding the sharing of
information relating to informants and their failure to ade-
quately train and supervise deputy district attorneys on that
subject, bear a close connection only to how the District
Attorney’s Office was managed, not to whether or how to
prosecute a particular case or even a particular category of
cases.3 Consequently, the challenged conduct is not prosecu-
torial in function and does not warrant the protections of abso-
lute immunity.
IV. Conclusion
For the above reasons, we hold that the district court cor-
rectly determined that Goldstein’s allegations against Van De
Kamp and Livesay describe conduct in furtherance of an
administrative rather than prosecutorial function. Van De
Kamp and Livesay have therefore failed to meet their burden
of demonstrating that the allegations against them are so “inti-
mately associated with the judicial phase of the criminal pro-
cess” that absolute immunity is warranted. Imbler, 424 U.S.
at 430. Accordingly, the decision of the district court is
AFFIRMED.
3Thus, we need not and do not decide whether a policy decision regard-
ing how to prosecute a particular category of cases would be protected by
absolute immunity.
3550 GOLDSTEIN v. VAN DE KAMP

-- 12 of 12 --