Flagler v. Trainor, No. 10-4081 (2d Cir. 2011)

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Justia Opinion Summary

Defendants, moved the district court to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Mathew Trainor, a Fulton County Assistant District Attorney, was absolutely immune from plaintiff's claims. The court affirmed the district court to the extent it found Trainor absolutely immune from plaintiff's claim that Trainor violated her constitutional rights by making false statements in support of a material witness order. The court vacated and remanded the rest of the order and judgment because absolute immunity did not immunize prosecutors from liability for making defamatory statements to the press, accessing a person's voicemail without consent, or persuading a party to a conversation to record its contents; and, the district court should consider in the first instance whether Trainor was absolutely immune for continuing to withhold/preserve evidence - plaintiff's cell phone.

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10-4081-cv Flagler v. Trainor 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Argued: September 14, 2011 Decided: November 21, 2011) Docket No. 10-4081-cv STEPHANIE FLAGLER, Plaintiff-Appellant, -v.MATTHEW E. TRAINOR, Assistant District Attorney, Fulton County, New York and THE COUNTY OF FULTON, NEW YORK, Defendants-Appellees. Before: CALABRESI, WESLEY, and LYNCH, Circuit Judges. Appeal from an order and judgment of the United States District Court for the Northern District of New York (McCurn, J.), which granted Defendants-Appellees motion to dismiss Plaintiff-Appellant s complaint in its entirety based on absolute prosecutorial immunity. Defendants-Appellees moved the district court to dismiss Plaintiff-Appellant s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that DefendantAppellee Matthew Trainor, a Fulton County Assistant District Attorney, was absolutely immune from Plaintiff-Appellant s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 claims.1 We conclude that the district court correctly found Trainor absolutely immune from liability for making alleged false statements in support of a material witness order and warrant. We also conclude, however, that the district court erred by finding Trainor absolutely immune from PlaintiffAppellant s other claims. Because absolute immunity only extends to conduct related to prosecutorial functions that are intimately associated with initiating or presenting the State s case, it does not immunize prosecutors from liability for: (1) making defamatory statements to the press; (2) accessing a person s voicemail without consent; or (3) persuading a party to a conversation to record its contents. We also vacate and remand for the district court to consider in the first instance whether immunity extends to Trainor s decision to preserve evidence after the criminal prosecution has run its course. We express no view as to the substantive viability of these claims. We simply conclude that absolute immunity does not shield this conduct. AFFIRMED in part, VACATED and REMANDED in part. BRADFORD BENSON, The Golden Law Firm, Utica, NY, for Plaintiff-Appellant. THOMAS HIGGS, Murphy, Burns, Barber & Murphy, LLP, Albany, NY, for Defendants-Appellees. WESLEY, Circuit Judge: This case requires us to revisit the purpose and scope of absolute immunity for prosecutors. 1 Flagler sued Fulton County, but has abandoned those claims. See Flagler v. Trainor, No. 08-cv-138, 2010 WL 3724015, at *3 (N.D.N.Y. Sept. 15, 2010). In addition, Flagler has clarified that she only sued Trainor in his individual capacity; she does not sue him in his official capacity. 2 1 I. 2 Plaintiff-Appellant Stephanie Flagler was a victim of 3 domestic violence at the hands of her ex-boyfriend, Brandon 4 Becker. 5 in which Flagler was the complaining witness. 6 trial was scheduled to begin on March 12, 2007. 7 leading up to Becker s trial, Assistant District Attorney 8 Matthew Trainor grew concerned that Becker was encouraging 9 Flagler to leave the state in order to avoid testifying at A grand jury indicted Becker for a criminal matter Becker s In the days 10 his trial. In addition, Trainor spoke with Becker s ex- 11 wife, who claimed that Flagler had told her that she planned 12 to leave the state from March 5, 2007 to March 12, 2007 and 13 would not talk to anyone in the District Attorney s office. 14 A. Material Witness Order and Arrest Warrant. 15 Trainor sought a material witness order to secure 16 Flagler s attendance at Becker s trial pursuant to New York 17 Criminal Procedure Law Article 620. 18 had quit responding to telephone calls after January 5, 19 2007, and that she was avoiding service of subpoena [sic] 20 for the upcoming trial. 21 his conversation with Becker s ex-wife. 22 the material witness order on March 1, 2007. He alleged that Flagler He also recounted for the court 3 Trainor moved for On the basis 1 of Trainor s affirmation, the County Court ordered Flagler 2 to appear at a hearing on March 7, 2007 in order to 3 determine whether she should be adjudged a material 4 witness. The court also issued a material witness arrest 5 warrant. In doing so, the judge found reasonable cause to 6 believe that Flagler would be unlikely to respond to the 7 court s order voluntarily. 8 9 In her complaint, Flagler alleged that Trainor knowingly made false statements in support of the material 10 witness order. 11 leave for a vacation on March 8, 2007, Trainor knew that she 12 would return on March 11, 2007, in time for Becker s trial. 13 She asserted that despite knowing her home, work, and school 14 addresses, Trainor made no attempt to notify her about 15 Becker s upcoming trial or to subpoena her. 16 Flagler alleged that while the County Court issued the 17 material witness arrest warrant on March 1, 2007, she was 18 not arrested until March 7, 2007, one day after she called 19 Trainor and confirmed that she would testify. 20 21 B. 22 23 She claimed that while she had planned to In addition, Flagler s Arrest, the Material Witness Hearing, and the Confiscation of Flagler s Cell Phone. Pursuant to the material witness arrest warrant, the Utica Police Department arrested Flagler at her home and 4 1 transported her to the Fulton County Supreme Court for the 2 March 7, 2007 hearing. 3 a Fulton County Public Defender to represent Flagler at the 4 material witness hearing. 5 Justice Aulisi that she had been cooperative with the 6 District Attorney s office and had never said she would not 7 come to court. 8 Flagler s phone call from the prior day, and despite her 9 communications, Trainor recommended that the court remand Justice Richard T. Aulisi appointed At the hearing, Flagler told Trainor never told Justice Aulisi about 10 her into custody. 11 Sheriff s Department took Flagler back into custody and held 12 her overnight without bail. 13 Court the following morning, and was 14 After the hearing, the Fulton County She appeared before the County released on bail. The Sheriff s Department confiscated Flagler s cell 15 phone when the Department took custody of Flagler. 16 alleged that the Sheriff s Department gave her cell phone to 17 Trainor and that someone in the District Attorney s office 18 unlawfully tried to access Flagler s voicemail. 19 also alleged that Trainor has refused to return her cell 20 phone, even though Becker s conviction is final. 21 C. 22 Flagler Flagler Trainor s Other Alleged Wrongful Acts. Flagler also alleged that Trainor made a defamatory 5 1 statement against her by falsely proclaiming to the press 2 that she had been hiding out, and that Trainor persuaded 3 Becker s ex-wife to record telephone calls with Flagler 4 without her consent. 5 D. 6 Procedural History. Trainor moved to dismiss Flagler s complaint solely on 7 the basis of absolute prosecutorial immunity. Mot. to 8 Dismiss 1-5, Flagler v. Trainor, No. 08-cv-138 (N.D.N.Y. 9 Jan. 14, 2009), ECF No. 10-7. The District Court granted 10 the motion, dismissing all of Flagler s federal claims and 11 declining to consider Flagler s remaining state claims 12 without a federal counterpart. 13 *4-6. 14 affirm in part and vacate and remand in part. 15 16 17 18 Flagler, 2010 WL 3724015, at Flagler filed a timely notice of appeal, and we now II. A. Absolute Prosecutorial Immunity.2 Prosecutors are generally immune from liability under 42 U.S.C. § 1983 for conduct in furtherance of prosecutorial 2 In this case, the standard of review is well known and not at issue. We review de novo a district court s grant of a motion to dismiss pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint as true and drawing all inferences in the plaintiff s favor. Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 685 (2d Cir. 2001). We will affirm only if it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief. Id. (internal quotation marks omitted) (alterations in original). 6 1 functions that are intimately associated with initiating or 2 presenting the State s case. 3 409, 427-28 (1976). 4 the prosecutor s common law tort immunity. 5 arises from the concern that harassment by unfounded 6 litigation would cause a deflection of the prosecutor s 7 energies from his public duties, and the possibility that he 8 would shade his decisions instead of exercising the 9 independence of judgment required by his public trust. Imbler v. Pachtman, 424 U.S. Section 1983 immunity is grounded in That immunity Id. 10 at 423. 11 court each time [an aggrieved defendant] charged him with 12 wrongdoing, his energy and attention would be diverted from 13 the pressing duty of enforcing the criminal law. 14 425. 15 prosecutor s office by insulating the exercise of 16 prosecutorial discretion. 17 125 (1997). 18 19 20 21 22 23 24 25 [I]f the prosecutor could be made to answer in Id. at Immunity protects the proper functioning of the Kalina v. Fletcher, 522 U.S. 118, Yet absolute prosecutorial immunity is not without its costs. In Imbler, the Supreme Court explained: To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor s immunity would disserve the broader public interest. It would prevent the 7 1 2 3 vigorous and fearless performance of the prosecutor s duty that is essential to the proper functioning of the criminal justice system. 4 424 U.S. at 427-28; see also Gregoire v. Biddle, 177 F.2d 5 579, 581 (2d Cir. 1949). 6 immunity may leave an injured party without a remedy, 7 society has found more benefit in insulating the exercise of 8 prosecutorial discretion. 9 Thus, while absolute prosecutorial That being said, the Supreme Court has clarified that 10 immunity is not a function of the prosecutor s title. 11 Kalina, 522 U.S. at 125, 127. 12 prosecutorial functions that are intimately associated with 13 initiating or presenting the State s case. 14 are absolutely immune from suit only when acting as 15 advocates and when their conduct involves the exercise of 16 discretion. 17 prosecutors absolutely immune from suit for alleged 18 misconduct during a probable cause hearing,3 in initiating a 19 prosecution,4 and in presenting the State s case.5 20 other hand, the Court has withheld absolute immunity for Id. at 127. Rather, it attaches to Id. Prosecutors Thus, the Supreme Court has found 3 Burns v. Reed, 500 U.S. 478, 492 (1991). 4 Imbler v. Pachtman, 424 U.S. 409, 431 (1976). 5 Id. 8 On the 1 conduct unrelated to advocacy, such as giving legal advice,6 2 holding a press conference,7 or acting as a complaining 3 witness.8 4 The task then is to determine whether each asserted 5 wrongful act falls within the zone of Trainor s absolute 6 immunity as a prosecutor. 7 8 1. 9 False Statements Made in Support of a Material Witness Order. Flagler contends that by making sworn factual 10 statements in support of the order, Trainor was acting as a 11 complaining witness rather than as an advocate. 12 v. Fletcher, the Supreme Court held that a prosecutor was 13 not absolutely immune from liability for making false 14 statements in support of an arrest warrant. 15 prosecutor provided a Certification for Determination of 16 Probable Cause that summarized the evidence supporting the 17 arrest warrant. 18 the motion an affidavit from a witness with personal 19 knowledge of facts, the prosecutor personally vouched for 20 the truth of the facts set forth in the certification. 522 U.S. at 121. In Kalina There, the Rather than attaching to 6 Burns, 500 U.S. at 492-96. 7 Buckley v. Fitzsimmons, 509 U.S. 259, 276-78 (1993). 8 Kalina v. Fletcher, 522 U.S. 118, 129-31 (1997). 9 Id. 1 The certification included two inaccurate factual 2 statements, id.; the charges against the defendant were 3 eventually dismissed, id. at 122. 4 the prosecutor under Section 1983 based on [the 5 prosecutor s] alleged violation of his constitutional right 6 to be free from unreasonable seizures. 7 moved for summary judgment based on absolute prosecutorial 8 immunity. 9 Ninth Circuit and Supreme Court affirmed. 10 The former defendant sued Id. The prosecutor The district court denied immunity and both the Id. at 122-23. After surveying the history of prosecutorial immunity, 11 the Supreme Court recognized immunity s two important 12 functions: (1) protecting the prosecutor from harassing 13 litigation that would divert [the prosecutor s] time and 14 attention from his official duties ; and (2) the interest 15 in enabling [the prosecutor] to exercise independent 16 judgment when deciding which suits to bring and in 17 conducting them in court. 18 omitted). 19 function insulating the prosecutor s discretion when acting 20 as advocate was of primary importance. 21 statements in support of an arrest warrant were not Id. at 125 (internal quotation The Court recognized that the second 10 Id. But sworn 1 intimately associated with a prosecutor s duty to advocate.9 2 Rather, offering sworn statements was an act that any 3 competent witness might have performed. 4 The prosecutor was acting as a complaining witness, not as 5 an advocate; [t]estifying about facts is the function of 6 the witness, not of the lawyer. 7 also noted that neither federal nor state law made it 8 necessary for the prosecutor to make [the factual 9 assertion]. 10 Id. at 129-30. Id. at 130. The Court Id. at 129. Kalina is easily distinguishable from the case before 11 us. There are key differences between arrest warrants and 12 material witness orders. 13 prosecutor or defense attorney can seek a material witness 14 order. 15 Crim. Proc. Law § 620.30(1) (requiring the applicant to 16 make a written, sworn application in order to commence 17 material witness proceedings; the applicant is either the 18 prosecutor or defense attorney). 19 is one of the first steps required to begin a criminal For one, in New York, only a N.Y. Crim. Proc. Law § 620.20(1); see also N.Y. 9 Further, an arrest warrant The Court held that preparing and drafting of the certification was protected by absolute immunity because it was intimately associated with a prosecutors s advocacy. It was only the act of personally attesting to the truth of the averments that went beyond the prosecutor s duty to advocate. Kalina, 522 U.S. at 129. 11 1 investigation. 2 issue only when a prosecution is ready for trial. 3 A material witness order, in contrast, may Seeking a material witness order is within the 4 prosecutor s function as an advocate. A prosecutor 5 employs prosecutorial discretion when determining whether to 6 seek such an order. 7 (2d Cir. 1984)10; Daniels v. Kieser, 586 F.2d 64, 69 (7th 8 Cir. 1978). 9 presenting the State s case. See Betts v. Richard, 726 F.2d 79, 79 It is an act intimately associated with The material witness order 10 ensures the attendance of a material witness at trial, 11 which often makes or breaks the prosecutor s case. 12 13 Nevertheless, Flagler argues that the Third and Ninth Circuits have denied absolute prosecutorial immunity for 10 In Betts v. Richard, 726 F.2d 79 (2d Cir. 1983), we held that a prosecutor who had obtained a writ of capias (essentially the Connecticut equivalent of a material witness warrant) to ensure the presence of the complaining witness at a criminal trial was immune from liability under § 1983. It is arguable that Betts is controlling authority in this circuit, subject only to whether Kalina abrogates its precedential force. Because we believe that absolute immunity applies even on the analysis set forth in Kalina, and would reach the same result even if Betts had never been decided, we do not need to decide whether Kalina sets forth a sufficiently novel analysis to require us to rethink the Betts precedent. See Union of Needletrades, Indus. & Textile Employees v. INS, 336 F.3d 200, 210 (2d Cir. 2003) (setting forth the standard for when we may disregard circuit authority in light of intervening Supreme Court precedent). It follows from our analysis that while the Betts court did not have the benefit of Kalina, and applied a somewhat different framework derived from earlier cases, its result would survive any rethinking that Kalina might require. 12 1 wrongdoing in connection with prosecutorial functions. 2 Flagler, however, fails to recognize that the wrongdoing in 3 those cases was either administrative in nature11 or akin to 4 the function of law enforcement officers in protecting the 5 public safety by making a complaint of wrongdoing.12 6 Therefore, notwithstanding Flagler s arguments to the 7 contrary, we find Trainor absolutely immune for making 8 alleged false statements in support of a material witness 9 order and warrant. 10 2. 11 Flagler argues that Trainor defamed her by falsely Alleged Defamatory Statements Made to the Press. 11 Odd v. Malone, 538 F.3d 202, 213, 215-16 (3d Cir. 2008). In Odd, the Third Circuit held that keeping the court informed about the status of a criminal proceeding (which could affect a material witness s continued detention) was an administrative task. The court recognized, however, that securing a material witness s attendance at trial was shielded by absolute immunity. Id. at 212. That is the case before us; Flagler challenges Trainor s conduct that was intimately associated with his securing her attendance at trial as a material witness. 12 In Cruz v. Kauai County, the Ninth Circuit denied absolute immunity because the prosecutor s conduct swearing to facts in support of a bail revocation was akin to conduct of a complaining witness, even though Hawaii law restricted authority to seek bail revocation to a prosecutor. 279 F.3d 1064, 1067-68 (9th Cir. 2002). We recognize that our holding may be in tension with Cruz. In Cruz, however, the district court granted only qualified immunity, so the Ninth Circuit s discussion about absolute immunity is largely dicta. And, we believe that in seeking a material witness warrant, despite signing an affidavit, the prosecutor is intimately involved in advocacy assembling and presenting the State s case. 13 1 stating to the press that she had been hiding out before 2 the trial. 3 liability for this claim; he did not challenge the substance 4 of the pleading. 5 Trainor only claimed absolute immunity from In Buckley v. Fitzsimmons, the Supreme Court held that 6 statements to the media are not entitled to absolute 7 immunity. 8 that while absolute immunity shields statements made during 9 a judicial proceeding, it does not shield statements made 509 U.S. 259, 277 (1993). Id. The Court explained 10 outside court. The Court reasoned: The conduct of a 11 press conference does not involve the initiation of a 12 prosecution, the presentation of the State s case in court, 13 or actions preparatory for these functions. 14 The Court recognized that while statements to the press may 15 be an integral part of the prosecutor s job, the duty is 16 no different than that for other executives who deal with 17 the press and enjoy only qualified immunity. 18 absolute immunity does not shield statements made to the 19 press, the district court erred by dismissing Flagler s 20 defamation claim on account of absolute immunity. 21 22 14 Id. at 278. Id. Because 1 2 3 3. Alleged Accessing of a Person s Voicemail without Consent and Persuading Becker s Ex-Wife to Record Telephone Calls. 4 We have no trouble concluding that Trainor is not 5 absolutely immune from allegedly accessing, or ordering 6 someone to access, Flagler s voicemail without her consent, 7 or from persuading Becker s ex-wife to record telephone 8 calls with Flagler.13 9 investigatory acts, and absolute immunity does not shield The alleged misconduct is akin to 10 investigatory acts. See, e.g., Van de Kamp v. Goldstein, 11 555 U.S. 335, 342 (2009); Imbler, 424 U.S. at 430; Pierson 12 v. Ray, 386 U.S. 547, 557 (1967). 13 court erred by dismissing Flagler s claims on this ground. As a result, the district 14 15 4. 16 Trainor argues that by withholding Flagler s cell Alleged Withholding/Preserving of Evidence After a Criminal Prosecution Has Run its Course. 17 phone, he is preserving evidence and that preservation of 18 evidence is intimately associated with presenting the 19 State s case. In Parkinson v. Cozzolino, we held that a 20 prosecutor is absolutely immune for withholding/preserving 13 We take no position on whether these acts occurred or whether they would constitute actionable misconduct if they did. In general, so long as one party to a conversation consents to its recording, the recording is lawful under both New York and federal law. See N.Y. Crim. Proc. Law § 700.05; N.Y. Penal Law § 250.00; United States v. White, 401 U.S. 745 (1971). 15 1 evidence to be used in connection with a criminal 2 prosecution, and that immunity extends throughout a 3 subsequent appeal. 4 made no determination, however, as to when such immunity 5 ends. 6 238 F.3d 145, 152 (2d Cir. 2001). We Id. We recognize the inherent conflict between Flagler s 7 argument and a prosecutor s duty to defend a conviction. 8 we agreed with Flagler, absolute immunity would end once the 9 time to appeal and collaterally attack a conviction had run. 10 But some collateral attacks, like actual innocence, have no 11 statute of limitations. 12 learn of new tests and tools that make fact finding more 13 precise - technologies once thought inconceivable. 14 Therefore, without fuller development of the issue by 15 thoughtful briefing and factual development in the district 16 court, we are unwilling to draw a line as to how long 17 absolute immunity shields a prosecutor for 18 withholding/preserving evidence. 19 If And as technology advances, we Rather, we recognize that Trainor did not raise 20 Cozzolino below. We therefore vacate and remand the 21 district court s order and judgment so it may consider 22 whether Trainor is absolutely immune for preserving 16 1 evidence Flagler s cell phone after Becker s conviction 2 became final. 3 address this issue if it deems summary judgment appropriate 4 on the basis of qualified immunity. 5 6 Of course, the district court need not III. We AFFIRM the district court to the extent it found 7 Trainor absolutely immune from Flagler s claim that he 8 violated her constitutional rights by making false 9 statements in support of a material witness order. We 10 VACATE and REMAND the rest of the order and judgment because 11 absolute immunity does not immunize prosecutors from 12 liability for making defamatory statements to the press, 13 accessing a person s voicemail without consent, or 14 persuading a party to a conversation to record its contents; 15 and, the district court should consider in the first 16 instance whether Trainor is absolutely immune for continuing 17 to withhold/preserve evidence Flagler s cell phone. 17 1 CALABRESI, Circuit Judge, concurring: 2 I agree completely with the majority opinion and join 3 it fully. 4 decided Collazo v. Pagano, 656 F.3d 131 (2d Cir. 2011) 5 (another opinion with which I agree completely), whose 6 relation to this case is, I think, worth underscoring. 7 I write separately because our Court has recently In Collazo, we held that claims dismissed on the ground 8 of absolute prosecutorial immunity are considered 9 frivolous for purposes of 28 U.S.C. § 1915(g), the 10 three-strikes provision.1 11 limited our holding to cases in the readily distinguishable 12 heartland of immune prosecutorial conduct that 13 [is] . . . intimately associated with the judicial phase of 1 Id. at 134. We expressly Section 1915(g) provides: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). 1 the criminal process. Id. n.2 (citing Burns v. Reed, 500 2 U.S. 478, 486 (1991)). We also excluded cases in which the 3 complaint is not dismissed sua sponte pursuant to 28 U.S.C. 4 § 1915(g). 5 Id. I write to clarify the following. A court may dismiss 6 a claim sua sponte on three grounds pursuant to 28 U.S.C. 7 § 1915(e)(2)(B): If the action is frivolous or malicious, 8 fails to state a claim on which relief may be granted, or 9 seeks monetary relief from a defendant who is immune.2 10 last of these grounds, immunity, would be a basis for 11 dismissal under § 1915(e)(2) even if the claim in the 12 complaint were a serious one and anything but easy. 13 other words, if a dismissal occurred pursuant to 14 § 1915(e)(2) on absolute immunity grounds, it could not, 15 without more, be per se frivolous for purposes of the 2 The In The criteria for accumulating strikes under § 1915(g) track only two of the three grounds for dismissal under § 1915(e)(2)(B). They do not include immunity. See 28 U.S.C. § 1915(g). Nonetheless, we have held that under certain circumstances, a district court making the "three-strikes" determination under § 1915(g) may deem a prior dismissal on account of immunity as frivolous. Collazo, 656 F.3d at 134, Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011). 2 1 three-strikes determination under § 1915(g). Conversely, 2 § 1915(g)-the basis for dismissal expressly mentioned in 3 Collazo-applies only where the district court finds that a 4 prisoner previously has brought three or more frivolous 5 lawsuits. 6 necessarily entail a finding, whether implicit or explicit, 7 that at least three former claims were frivolous. 8 dismissal based on immunity will not be frivolous unless the 9 district court making the § 1915(g) determination deems the 10 former case to fall within the distinguishable heartland of 11 immune prosecutorial conduct. 12 n.2. This means that a dismissal citing § 1915(g) must And a Collazo, 656 F.3d at 134 13 The case before us is a perfect example of a claim of 14 absolute immunity that, though it loses (I of course refer 15 to the portion of our opinion affirming the district court s 16 dismissal), is anything but frivolous. 17 Plaintiff-Appellant s claim that absolute immunity does not 18 apply, relies, inter alia, on the Ninth Circuit opinion in 19 Cruz v. Kauai Cnty., 279 F.3d 1064 (9th Cir. 2002), and, as 20 our opinion points out, our decision, whether or not in 21 conflict with Cruz, is at least in tension with it. 3 To 1 suggest, as Appellant does, that Cruz should guide us, is 2 not frivolous and is not made frivolous by the fact that we 3 rejected the suggestion. 4 The difference between a dismissal on absolute immunity 5 grounds pursuant to § 1915(e)(2)(iii), and a dismissal as 6 the Court in Collazo required, pursuant to § 1915(g), is 7 crucial. 8 that the claim was not frivolous in the circumstances of 9 that case, and, hence, does not justify a strike for the The first necessarily allows a claimant to assert 10 purposes of the three-strikes finding. 11 Collazo held, forecloses that argument. 4 The second, as