Unpublished Disposition, 919 F.2d 144 (9th Cir. 1990)

MEMORANDUM^** 

Malcolm George Greyson appeals pro se the district court's order adopting the Magistrate's Report and Recommendation and dismissing Greyson's 42 U.S.C. § 1983 suit against prosecutor Emlyn Higa pursuant to Fed. R. Civ. P. 12(b) (6) for failure to state a claim. The court held that Greyson's claim is barred under the doctrine of absolute prosecutorial immunity. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

We review a dismissal for failure to state a claim pursuant to Rule 12(b) (6) de novo. Tanner v. Heise, 879 F.2d 572, 576 (9th Cir. 1989). All allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Id. In civil rights cases, where the petitioner is pro se, the court has an obligation to construe the pleadings liberally and to afford petitioner any benefit of the doubt. Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985).

It is well settled that "in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under Sec. 1983." Imbler v. Pachtman, 424 U.S. 409, 431 (1976); see Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc). Absolute immunity attaches to prosecutorial conduct "intimately associated with the judicial phase of the criminal process." Imbler, 424 U.S. at 430. However, the Supreme Court in Imbler did not decide whether immunity attaches when the prosecutor acts in an investigative or administrative role. Id. at 430-31. Thus, Imbler left standing the Ninth Circuit rule that a prosecutor enjoys only qualified immunity when he or she acts in an investigative or administrative role. Demery v. Kupperman, 735 F.2d 1139, 1143 (9th Cir. 1984), cert. denied, 469 U.S. 1127 (1985).

The line between quasi-judicial and investigative acts by a prosecutor is not always clear. Imbler, 424 U.S. at 431 n. 33. We must focus on the nature of the activity to determine whether it is quasi-judicial. Schlegel v. Bebout, 841 F.2d 937, 943 (9th Cir. 1988). " [W]hen a prosecutor decides to litigate, interviews witnesses, and gathers evidence, he or she is engaging in conduct that relates to the preparation of his or her case. This activity enjoys absolute immunity." Id. at 943-44; see also Demery, 735 F.2d at 1144 (conferring with witnesses to determine whether to initiate proceedings is plainly judicial function entitled to absolute immunity).

Greyson contends that Higa acted as an investigator or administrator when he provided "engineering criteria" and conducted an out-of-court experiment during a pretrial interview with Dr. Wong, an expert medical witness, and is therefore only entitled to qualified immunity. However, the record reveals that Higa merely interviewed Dr. Wong prior to his trial testimony, and showed him a partial transcript of Greyson's testimony from his previous trial.¹  The interview with Dr. Wong was part of Higa's role in preparing the case against Greyson. Therefore, such conduct is protected by absolute immunity. See Schlegel, 841 F.2d at 943-44.

Dr. Wong testified at trial that he conducted an informal experiment alone in his bedroom the morning of his testimony.²  The record does not show that Higa "engineered" this experiment or functioned as an "engineering consultant." Thus Higa never assumed an investigative or administrative role that would entitle him to only qualified immunity. See Demery, 735 F.2d at 1143.

Higa's interview of Dr. Wong was intimately associated with the judicial phase of the criminal process. See Schlegel, 841 F.2d at 943-44. Accordingly, Higa's conduct is protected by absolute immunity. See Imbler, 424 U.S. at 430. Therefore, Greyson has failed to state a claim against Higa under section 1983.

AFFIRMED.³