2008-08-13_Jack_Thomas_v_COH_-_Motion_for_Summary_Judgment

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C Case 1:07-cv-00251-JMS-LEK Document 42-2 Filed 08/13/2008 Page 15 of 27 In this circumstance, the absolute immunity defense may be resolved as a matter of law on a summary judgment motion as well as a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P."). See, e.g., Imbler, 424 U.S. at 416-17, 96 S.Ct. at 988-989; Bernard, 356 F.3d at 501-02; Hill, 45 F.3d at 657; Lee v. Willins, 617 F.2d at 321. It is by now well established that "a state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution," Imbler, 424 U.S. at 410, 96 S.Ct. at 985, "is immune from a civil suit for damages under §1983," id. at 431, 96 S.Ct. 984. See, e.g., Kalina v. Fletcher, 522 U.S. at 124, 118 S.Ct. at 506, 139 L.Ed.2d 471 (1997) (such a prosecutor "[i]s not amenable to suit [for damages] under §1983"); Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) ("acts undertaken by a prosecutor 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, are entitled to the protections of absolute immunity"); see also Imbler, 424 U.S. at 420, 96 S.Ct. at 990 ("The Courts of Appeals .... are virtually unanimous that a prosecutor enjoys absolute immunity from §1983 suits for damages when he acts within the scope of his prosecutorial duties."). Once again the rationale for conferring absolute immunity in such circumstances is that "[t]he public trust of the prosecutor's office would suffer if he were constrained in making every 8