USCA11 Case: 20-12281 Date Filed: 07/18/2022 Page: 1 of 14
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12281
____________________
KIDANEMARIAM KASSA,
Plaintiff-Appellant,
versus
FULTON COUNTY, GEORGIA, et al.
Defendants,
ANTIONETTE STEPHENSON,
individually,
Defendant-Appellee.
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2 Opinion of the Court 20-12281
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:17-cv-02068-SDG
____________________
Before JILL PRYOR, GRANT, and MARCUS, Circuit Judges.
JILL PRYOR, Circuit Judge:
This appeal requires us to decide whether absolute prosecu-
torial immunity protects an assistant district attorney from suit for
failing to ensure the cancellation or recall of a material witness war-
rant. 1 In this case, an assistant district attorney in Fulton County,
Georgia, Antionette Stephenson, obtained a material witness war-
rant requiring Kidanemariam Kassa to appear as a witness at trial.
Kassa voluntarily appeared at trial, making execution of the war-
rant unnecessary. After the trial ended, Stephenson failed to inform
the trial judge that the warrant needed to be recalled. A few months
later, a police officer arrested Kassa and placed him in jail because
of the outstanding warrant. A judge eventually ordered Kassa’s re-
lease.
1
Kassa’s amended complaint and the district court’s order dismissing his claim
use the phrases “cancel the warrant” and “recall the warrant” interchangeably.
We do the same here.
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20-12281 Opinion of the Court 3
Kassa brought a
42 U.S.C. § 1983 action alleging, among
other things, that Stephenson’s failure to initiate the warrant’s can-
celation violated his Fourth and Fourteenth Amendment rights.
Stephenson moved to dismiss the suit arguing that as a prosecutor
she was entitled to absolute prosecutorial immunity. The district
court agreed and dismissed Kassa’s claims against her.
On appeal, Kassa argues that the district court erred in dis-
missing the case because Stephenson was not entitled to absolute
prosecutorial immunity for her failure to inform the judge that the
warrant should be recalled. After careful consideration, and with
the benefit of oral argument, we hold that absolute prosecutorial
immunity does not extend to Stephenson’s failure to take action to
cancel the warrant. The district court thus erred in dismissing
Kassa’s complaint. We reverse and remand to the district court for
further proceedings.
I. BACKGROUND
Kassa was a taxicab driver who sometimes drove routes in
downtown Atlanta. One day, someone tried to rob Kassa while he
was driving downtown. The Fulton County District Attorney’s Of-
fice eventually indicted an individual for the attempted robbery. As
the criminal trial approached, Kassa began experiencing medical
problems. He told the District Attorney’s Office about his medical
issues. The trial was continued to a later date so that Kassa would
be available to testify.
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4 Opinion of the Court 20-12281
Sometime later, Stephenson allegedly told a state court
judge that Kassa was avoiding a subpoena to testify at trial. Ste-
phenson obtained a material witness warrant from the judge. The
warrant was never executed because Kassa voluntarily appeared at
the trial to testify. In Fulton County, it was customary for prosecu-
tors to make an oral motion to cancel a material witness warrant
after a witness testified. 2 But Stephenson failed to do this. At the
end of the trial, Kassa remained unaware of the active warrant.
Several months after the trial, Kassa was involved in an acci-
dent while driving his taxicab. The Atlanta Police Department of-
ficer who arrived at the accident scene arrested Kassa because of
the active material witness warrant. Police officers placed Kassa in
the Fulton County Jail. Six days after his arrest, a state court judge
ordered his release.
Kassa filed suit against Stephenson and several other defend-
ants. 3 In his amended complaint, Kassa asserted a § 1983 claim
2
Under O.C.G.A. § 17˗7˗25, a Georgia “court of inquiry may order the arrest
of witnesses if required to compel their attendance.” Georgia law does not
provide specific procedures for cancelling a material witness warrant. At oral
argument, Stephenson’s counsel conceded that prosecutors in the Fulton
County District Attorney’s Office make oral motions to cancel material wit-
ness warrants after the witness testifies.
3
Kassa also asserted claims against Fulton County, former Fulton County Dis-
trict Attorney Paul Howard, an investigator named Pierre Easley who worked
for the county, and an unnamed defendant, John Doe, who worked for the
Fulton County Sheriff’s Office. The district court dismissed Kassa’s claims
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20-12281 Opinion of the Court 5
against Stephenson for “Denial of Due Process, Malicious Prosecu-
tion & Illegal Seizure” based on, among other things, Stephenson’s
failure to take appropriate action to cancel the warrant. Doc. 18 at
10. 4 Stephenson filed a motion to dismiss, arguing that as a prose-
cutor she was entitled to absolute prosecutorial immunity. The dis-
trict court agreed and dismissed the claims against her. The court
determined that Stephenson was entitled to immunity because
“the act of obtaining the material witness warrant” and “subse-
quent failure to ensure that the warrant was cancelled or recalled”
related “to conduct that occurred in the context of her role as an
advocate of the State during the judicial proceedings.” 5 Doc. 37 at
6.
against Howard and Doe and partially dismissed his claims against Easley.
Kassa does not challenge on appeal the district court’s dismissal of these
claims.
4
“Doc.” numbers refer to district court docket entries.
5
Kassa also asserted a state-law negligence claim against Stephenson. The dis-
trict court dismissed this claim, too, based on prosecutorial immunity. The
district court also dismissed the state-law claim on the alternative ground that
Kassa failed to allege that Stephenson “performed any ministerial duty negli-
gently or acted with malice in failing to ensure that the warrant was can-
celled.” Doc. 37 at 12. Kassa challenged this decision on appeal but did not
address the alternative ground. In his reply brief, Kassa concedes that he “did
not appeal from the district court’s alternative holding that Plaintiff’s com-
plaint failed to allege the existence of a ministerial duty.” Appellant Reply Br.
at 1 n1. “When an appellant fails to challenge properly on appeal one of the
grounds on which the district court based its judgment, he is deemed to have
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6 Opinion of the Court 20-12281
Kassa timely appealed.
II. STANDARD OF REVIEW
We review de novo a district court’s decision to grant “a mo-
tion to dismiss on the basis of immunity, construing all inferences
to be drawn therefrom in the light most favorable to the plaintiff
and accepting all well-pleaded factual allegations as true.” Weiss-
man v. Nat’l Ass’n of Sec. Dealers, Inc.,
500 F.3d 1293, 1295 (11th
Cir. 2007).
III. DISCUSSION
Kassa contends that absolute prosecutorial immunity does
not extend to Stephenson’s failure to inform the judge that the war-
rant needed to be recalled. We agree. We begin our analysis with
an overview of the absolute prosecutorial immunity doctrine. We
then explain why it does not protect Stephenson for the conduct at
issue here.
A. Absolute Prosecutorial Immunity Doctrine
The Supreme Court first examined absolute prosecutorial
immunity as a limit on § 1983 liability in Imbler v. Pachtman,
where it considered “whether a state prosecuting attorney who
acted within the scope of his duties in initiating and pursuing a
abandoned any challenge of that ground.” Sapuppo v. Allstate Floridian Ins.
Co.,
739 F.3d 678, 680 (11th Cir. 2014). We therefore affirm the district court’s
dismissal of Kassa’s negligence claim against Stephenson.
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20-12281 Opinion of the Court 7
criminal prosecution” was subject to suit for allegedly violating a
defendant’s constitutional rights. Imbler v. Pachtman,
424 U.S. 409,
410 (1976). In Imbler, an individual sued a deputy district attorney
for allegedly using false testimony and suppressing evidence during
his criminal trial.
Id. at 415–16. The Supreme Court concluded that
the deputy district attorney was entitled to absolute prosecutorial
immunity because his “activities were intimately associated with
the judicial phase of the criminal process.”
Id. at 430. The Court
explained that absolute immunity, which had common law roots,
prevented “harassment by unfounded litigation” which could
“cause a deflection of the prosecutor’s energies from his public du-
ties” and limit the prosecutor’s “independence of judgment.”
Id. at
423.
Since Imbler, the Supreme Court has employed a “func-
tional” approach to determine whether an individual is entitled to
absolute prosecutorial immunity. Burns v. Reed,
500 U.S. 478, 486
(1991). This is a fact-specific inquiry that “looks to the nature of the
function performed, not the identity of the actor who performed
it.” Buckley v. Fitzsimmons,
509 U.S. 259, 269 (1993) (internal quo-
tation marks omitted). “[T]he official seeking absolute immunity
bears the burden of showing that such immunity is justified for the
function in question.” Burns,
500 U.S. at 486. This approach makes
clear that absolute prosecutorial immunity “is not grounded in any
special esteem for those who perform these functions, and cer-
tainly not from a desire to shield abuses of office, but because any
lesser degree of immunity could impair the judicial process itself.”
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8 Opinion of the Court 20-12281
Kalina v. Fletcher,
522 U.S. 118, 127 (1997) (internal quotation
marks omitted). Using this approach, the Supreme Court has ex-
tended absolute immunity to prosecutors presenting evidence in
support of a search warrant. Burns,
500 U.S. at 491. It has also ap-
proved absolute immunity for prosecutors who failed to institute
an information-sharing system among junior attorneys that was
“directly connected with the prosecutor’s basic trial advocacy du-
ties.” Van de Kamp v. Goldstein,
555 U.S. 335, 346 (2009).
In applying absolute prosecutorial immunity, our Court has
echoed the Supreme Court’s focus on the fact-specific functional
approach, emphasizing that “[a] prosecutor is entitled to absolute
immunity for ‘acts undertaken . . . in preparing for the initiation of
judicial proceedings or for trial, and which occur in the course of
his role as an advocate for the state.’” Mastroianni v. Bowers,
173 F.3d 1363, 1366 (11th Cir. 1999) (quoting Buckley,
509 U.S. at
273). We have previously extended absolute immunity to prosecu-
tors for “filing an information without investigation, filing charges
without jurisdiction, filing a baseless detainer, offering perjured tes-
timony, suppressing exculpatory evidence, refusing to investigate
complaints about the prison system, and threatening further crim-
inal prosecutions.” Hart v. Hodges,
587 F.3d 1288, 1295 (11th Cir.
2009) (alterations adopted) (internal quotation marks omitted).
With these principles from the Supreme Court’s and this
Circuit’s caselaw in mind, we turn to whether Stephenson is enti-
tled to absolute prosecutorial immunity for failing to initiate recall
or cancellation of the warrant against Kassa.
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20-12281 Opinion of the Court 9
B. Application of the Absolute Prosecutorial Immunity Doc-
trine
We have never applied the functional approach to deter-
mine whether absolute prosecutorial immunity protects a prosecu-
tor who failed to initiate the cancellation of a material witness war-
rant after trial. Kassa argues that we should adopt the Third Cir-
cuit’s approach in Odd v. Malone,
538 F.3d 202 (3d Cir. 2008),
which denied absolute prosecutorial immunity under a very simi-
lar set of facts. For the following reasons, we agree.
Odd concerned two consolidated suits against prosecutors
who failed to ensure the cancellation of material witness warrants.
Odd,
538 F.3d at 205. In one of these cases, a prosecutor obtained
a warrant for a witness who failed to appear at a preliminary hear-
ing in a murder prosecution.
Id. at 206. Officers arrested the witness
and placed him in custody to ensure his appearance at another pre-
liminary hearing.
Id. The murder case was dismissed before the
prosecutor called the witness to testify.
Id. The prosecutor failed to
inform the judge that the witness was in custody, however, so the
judge did not release him.
Id. The witness eventually obtained an
attorney who secured his release after 58 days in jail.
Id.
The witness brought a § 1983 claim against the prosecutor.
Id. On appeal, the Third Circuit considered whether the prosecutor
was entitled to absolute prosecutorial immunity. Id. at 207. The
Third Circuit, employing the functional approach, concluded that
he was not immune from suit. Id. at 208, 217. The Third Circuit
pointed out that “keeping a third-party witness in state custody
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10 Opinion of the Court 20-12281
after the termination of the proceeding in which he was to testify
has nothing to do with conducting a prosecution for the state.” Id.
at 215 (emphasis omitted). The court reasoned further that the
prosecutor needed only to notify the judge that the witness re-
mained in jail, which did not require the prosecutor to engage in
any advocacy. Id. at 216. It explained that there was no common
law tradition of extending absolute immunity to prosecutors in
such a situation. Id. It concluded by noting that its decision applied
only to detained witnesses—not defendants—and, for this reason,
was unlikely to cause a surge in lawsuits against prosecutors that
would adversely affect prosecutorial independence. Id.
As an initial matter, we believe the Third Circuit’s reasoning
is consistent with cases from this Circuit and from the Supreme
Court. The Third Circuit’s analysis employed the functional ap-
proach that the Supreme Court has consistently embraced. Id. at
208. And, like our caselaw, the Odd decision underscored the fact-
specific nature of the inquiry, stating that its “prosecutorial immun-
ity analysis focuses on the unique facts of each case and requires
careful dissection of the prosecutor’s actions.” Id. at 210. We thus
find Odd persuasive.
Applying Odd’s analysis, we conclude that Stephenson is not
entitled to absolute prosecutorial immunity. The Third Circuit’s
decision to deny immunity turned on several facts that are also pre-
sent in this case. Both the prosecutor in Odd and Stephenson failed
to take action to recall warrants even though the judicial proceed-
ing had concluded, and the witnesses no longer were needed. Id. at
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215. And so, as the Third Circuit explained, the arrest and confine-
ment had “nothing to do with conducting a prosecution for the
state.” Id. (internal quotation marks omitted). In addition, Stephen-
son’s counsel acknowledged during oral arguments that—like the
prosecutor in Odd—Stephenson did not have to engage in any ad-
vocacy to initiate the warrant’s recall. Id. at 216. She needed only
to notify the judge. The notification required no exercise of profes-
sional judgment or legal skill. Because professional judgment
played no role here, like the Third Circuit, we have no concern that
litigation will adversely impact prosecutorial independence going
forward. Allowing witnesses detained after trial to sue prosecutors
for their inaction in cancelling warrants is unlikely to result in a
“flood” of new litigation against prosecutors. Id. at 216. We agree
with the Third Circuit that this is a “relatively clear example of a
situation in which the prosecutor’s role as an advocate for the state
had concluded.” Id. at 215.
Stephenson contends that Odd conflicts with the Supreme
Court’s decision in Van de Kamp v. Goldstein,
555 U.S. 335 (2009).
In Van de Kamp, the Supreme Court had to decide whether a pros-
ecutor should receive absolute prosecutorial immunity for certain
administrative activities like training subordinates.
Id. at 343–44.
The Supreme Court concluded that immunity applied.
Id. at 344.
Stephenson argues that the Third Circuit based its holding in Odd
on the administrative nature of the prosecutor’s actions—a ra-
tionale she argues conflicts with Van de Kamp’s conclusion that
prosecutors can receive absolute prosecutorial immunity for some
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12 Opinion of the Court 20-12281
administrative actions. We disagree. It is true that the Third Circuit
described the prosecutor’s actions as administrative, Odd,
538 F.3d
at 215–16, but the court applied the functional approach—looking
at whether immunity is justified for the specific function in ques-
tion—to conclude that the prosecutor’s actions were not “‘inti-
mately associated with the judicial phase’ of the litigation,”
id. at
214 (quoting Imbler,
424 U.S. at 430). This was consistent with Su-
preme Court precedent.
Stephenson also points to our decision in Hart v. Hodges,
587 F.3d 1288 (11th Cir. 2009), arguing that Odd is inconsistent
with it. In Hart, a prosecutor, mistakenly believing that a prisoner
had additional time on his state sentence, tried to transfer him to a
state prison after a federal prison released him.
Id. at 1291–92. The
prisoner sued.
Id. at 1293–94. The district court dismissed the suit
based on absolute prosecutorial immunity.
Id. at 1294. We affirmed
on appeal.
Id. at 1296–99. We noted that absolute “immunity may
extend to certain post-sentencing conduct of a prosecutor.”
Id. at
1296. We then explained that the prosecutor was attempting “to
advocate the judicial sentence he understood . . . had been imposed
by the state trial court.”
Id. at 1298. And this activity was “so inti-
mately associated with the judicial phase of the criminal process”
that it “cloak[ed] [the prosecutor] with absolute immunity.”
Id. (in-
ternal quotation marks omitted).
Stephenson asserts that Hart conflicts with Odd because
Hart extended absolute prosecutorial immunity to post-trial activ-
ities. The problem for Stephenson is that we based our decision in
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20-12281 Opinion of the Court 13
Hart on the prosecutor’s actions being intimately associated with
the judicial process. But Stephenson does not say how her failure
to initiate cancellation of the warrant was intimately associated
with the judicial process. As we explained, the functional approach
to applying absolute prosecutorial immunity is a highly fact-de-
pendent inquiry. It may be the case in certain circumstances—such
as those present in Hart—that absolute prosecutorial immunity ex-
tends to conduct after trial. In addition, our opinion says nothing
about whether a prosecutor is entitled to absolute immunity for
seeking a material witness warrant in connection with an ongoing
judicial proceeding. Stephenson, however, has failed to show that
absolute immunity protects her post-trial conduct here.6
IV. CONCLUSION
We conclude that the district court erred by determining
that Stephenson was entitled to absolute prosecutorial immunity
for failing to take action to cancel the material witness warrant.
6
Stephenson contends that we should affirm the district court’s order even if
she was not entitled to absolute prosecutorial immunity. Specifically, she ar-
gues that her “alleged failure to ensure the warrant was recalled does not state
a sufficient factual basis for a claim under
42 U.S.C. § 1983,” or alternatively
that she is entitled to qualified immunity. Appellee Br. at 11. Stephenson failed
to raise those arguments before the district court, so we will not consider them
on appeal. Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1331 (11th Cir.
2004). We leave it to the district court on remand to consider these arguments
in the first instance.
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14 Opinion of the Court 20-12281
According, we reverse the district court’s order. We remand for
further proceedings consistent with this opinion.
REVERSED AND REMANDED.
