FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Katherine A. Robertson, U.S. Magistrate
H. Rich, with whom Maria T. Davis and Todd & Weld, LLP
were on brief, for appellant.
Ryan, with whom Sasson, Turnbull, Ryan & Hoose was on
brief, for appellee.
Matthew R. Segal, American Civil Liberties Union Foundation
of Massachusetts, Inc., Emma Quinn-Judge, Monica Shah, and
Zalkind Duncan & Bernstein LLP on brief for American
Civil Liberties Union of Massachusetts and Massachusetts
Association of Criminal Defense Lawyers, amici curiae.
Lynch, Kayatta, and Barron, Circuit Judges.
appeal presents novel questions about the scope of absolute
prosecutorial and government attorney immunity from claims
asserted under 42 U.S.C. § 1983.
Rolando Penate filed this § 1983 action against
seventeen defendants after the dismissal with prejudice of
his 2013 Massachusetts criminal conviction for drug
distribution. This appeal is from an order denying absolute
immunity to one of those defendants, Anne Kaczmarek, a former
Massachusetts Assistant Attorney General. Penate's
complaint alleged that Kaczmarek unlawfully withheld (and
worked with others to unlawfully withhold) exculpatory
evidence from Penate's counsel; from the Hampden County,
Massachusetts District Attorney, whose office prosecuted
Penate in Hampden County Superior Court; and from that state
court. The withheld evidence showed that a drug laboratory
chemist, Sonja Farak, had been battling drug addiction and
had tampered with samples she was assigned to test around the
time she tested the samples in Penate's case. Kaczmarek
had obtained the evidence at issue while she was prosecuting
Farak on state charges of tampering with evidence and drug
the magistrate judge rejected Kaczmarek's motion to
dismiss on grounds of absolute immunity, Penate
v. Kaczmarek, No. 17-cv-30119, 2018 WL
6437077, at *16 (D. Mass. Dec. 7, 2018), Kaczmarek filed this
interlocutory appeal. We affirm.
required to "make two important assumptions about the
case: first, that [Penate's] allegations are entirely
true; and, second, that they allege constitutional violations
for which § 1983 provides a remedy."
Buckley v. Fitzsimmons, 509 U.S.
259, 261 (1993); see also Guzman-Rivera v.
Rivera-Cruz, 55 F.3d 26, 28 (1st Cir. 1995). The
first of these assumptions is critical here, as our
rejections of Kaczmarek's novel claims to absolute
immunity are fact-bound conclusions.
recounting the allegations in the complaint and the history
of this suit, we address Kaczmarek's two theories for
absolute immunity. She first argues that she enjoys absolute
prosecutorial immunity because the conduct alleged in the
complaint occurred during the time period when she was
assigned to prosecute Farak. We reject this argument because,
on the facts alleged in the complaint, Kaczmarek's
decision to withhold evidence from the criminal prosecution
of Penate lacked a "functional tie" to her
prosecutorial role in Farak's separate case.
Buckley, 500 U.S. at 277. Kaczmarek alternatively
seeks absolute immunity on the ground that, in performing
some conduct alleged in the complaint, she functioned as an
advocate for the government in an evidentiary hearing
associated with the criminal case against Penate. But certain
allegations in the complaint are best read to allege that
Kaczmarek played an administrative role concerning this
hearing. On that basis, we reject this second argument for
Facts Alleged in the Complaint
was charged by the Hampden County District Attorney with
several drug-related offenses on November 16, 2011. The
suspected drugs were sent to the Massachusetts Department of
Public Health's Amherst Drug Lab and were assigned to
Farak for analysis. Farak reported that the substances from
Penate's case had all tested positive for the presence of
tested the samples on December 22, 2011, January 6, 2012, and
January 9, 2012. Also on December 22, Farak entered on a
Diary Card kept as part of her treatment for drug addiction
that she "tried to resist using [at] work but ended up
later placed this Diary Card in the trunk of her car, where,
as discussed below, it was found, along with similar
worksheets, by the state police. Those documents revealed
that, during the period that the lab held the samples in
Penate's case, Farak had struggled with drug addiction,
had frequently consumed drugs while at work, and had often
tampered with and used drug samples and supplies held by the
lab. At the heart of this case is Kaczmarek's failure to
disclose this exculpatory evidence to Penate, to his
prosecutor, and to the court in his criminal
charges against Penate were still pending when the
Massachusetts Attorney General's Office (AGO or AG) began
investigating Farak for misconduct at the Amherst Drug Lab.
On January 19, 2013, AGO investigators obtained a warrant to
search Farak's car, searched the car, and seized hundreds
of pages of paper, including the Diary Card and other mental
was charged with tampering with evidence and drug possession
on January 22, 2013. Kaczmarek, a prosecutor in the AG's
Enterprise and Major Crimes Unit, was assigned to prosecute
Farak, who ultimately pleaded guilty in January 2014.
complaint then tracks the AGO's actions related to the
exculpatory evidence that Penate claims was unlawfully
withheld during his criminal proceeding. The Diary Card and
other mental health worksheets first went unmentioned or were
characterized as "assorted lab paperwork" by
investigators in police reports and returns for search
warrants. "This was not an oversight," the
complaint alleges, "but reflected a collective decision
on the part of Kaczmarek, . . . [Police Sergeant Joseph]
Ballou, and . . . [others] to deny the existence of this
highly probative evidence." The complaint then alleges
that, around the same time, Kaczmarek discouraged Ballou from
following up on an allegation of evidence tampering by Farak
February 2013, Ballou attached copies of the Diary Card and
other mental health worksheets to an email to Kaczmarek with
the subject line "FARAK Admissions." "Here are
those forms with the admissions of drug use I was talking
about," he wrote.
March, neither the Diary Card nor the other mental health
worksheets were included in the packets of evidence related
to Farak provided to all of the Massachusetts District
Attorneys. The packets were accompanied by a letter from the
head of the AG's Criminal Bureau, John Verner; the letter
explained that the AG was investigating Farak and stated,
"Pursuant to this office's obligation to provide
potentially exculpatory information to the District Attorneys
as well as information necessary to your Offices'
determination about how to proceed with cases in which
related narcotic evidence was tested at the Amherst
Laboratory, please find the below listed materials . . .
same day in March, Kaczmarek submitted to Verner and her
other supervisors a Prosecution Memo that contained multiple
references to Farak's mental health worksheets. Kaczmarek
stated that the worksheets had "not been submitted to
the [Farak] grand jury out of an abundance of caution,"
although "[c]ase law" indicated that "the
paperwork [was] not privileged." Verner responded with a
hand-written note telling her that these documents had
"NOT" been "turned over to DAs offices
this withholding of the mental health worksheets from the
District Attorneys (and later from Penate and the Hampden
County Superior Court), Kaczmarek did disclose the worksheets
to Farak's defense attorney. In doing so, Kaczmarek told
the defense that the documents would not be turned over to
any "Farak defendants" (that is, defendants seeking
relief based on Farak's misconduct) and that the AG's
office considered the documents to be "privileged."
who was awaiting his trial on the criminal charges, filed a
motion to dismiss in July 2013 based on the charges against
Farak. The judge ordered an evidentiary hearing on the issue
of Farak's misconduct between November 2011 and January
2012, when the lab had custody of the substances from
Penate's case. Penate's motion was consolidated with
similar motions from about a dozen Farak-defendant cases
pending in Hampden County Superior Court. A hearing in these
consolidated motions on the timing and scope of Farak's
misconduct was scheduled for September 9, 2013.
the hearing, Assistant District Attorney Eduardo Velazquez,
who was prosecuting Penate, sought any exculpatory evidence
for the hearing from the AGO. He was told that all relevant
evidence had already been provided to the DAs, even though
the mental ...