2008-08-13_Jack_Thomas_v_COH_-_Motion_for_Summary_Judgment

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Case 1:07-cv-00251-JMS-LEK Document 42-2 Filed 08/13/2008 Page 25 of 27 Most importantly for this case, state prosecutors Kimura and Malate, enjoy absolute immunity from civil damages under 42 U.S.0 §1983 because their challenged actions were performed during the course and in the scope of their duty as advocates. Imbler v. Pachtman, 424 U.S. 409, 427, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Kalina v. Fletcher, 522 U.S. 118, 126, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997); Spivey v. Robertson, 197 F .3d 722, 726 (5th Cir.2000). Traditional functions of an advocate are those functions which are intimately associated with the judicial phase of the criminal process, including, but not limited to whether to present a case to a grand jury, whether to file an information, whether and when to prosecute, whether to dismiss an indictment against a particular defendant, which witnesses to call, and what other evidence to present. Imbler v. Pachtman, 424 U.S. 409, 430-431, n. 33, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). A prosecutor is absolutely immune from any suit arising out of his duties as an advocate, regardless of the egregious nature of the allegations. Imbler v. Pachtman, 424 U.S. 409, 430-431, n. 33, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (prosecutor absolutely immune from liability where he knowingly used perjured testimony, deliberately withheld exculpatory evidence, and failed to disclose all facts casting doubt upon state's testimony); Esteves v. Brock, 106 F.3d 674 (5th Cir.1997)(prosecutor absolutely immune from claims of using 18