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Penate v. Kaczmarek

United States Court of Appeals, First Circuit

June 26, 2019

ROLANDO PENATE, Plaintiff, Appellee,


          David H. Rich, with whom Maria T. Davis and Todd & Weld, LLP were on brief, for appellant.

          Luke 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.

          Before Lynch, Kayatta, and Barron, Circuit Judges.


         This appeal presents novel questions about the scope of absolute prosecutorial and government attorney immunity from claims asserted under 42 U.S.C. § 1983.

         Appellee 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 possession.

         After 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.

         We are 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.

         After recounting the allegations in the complaint and the history of this suit, we address Kaczmarek's two theories for absolute immunity.[1] 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 absolute immunity.


         A. Facts Alleged in the Complaint

         Penate 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 controlled substances.

         Farak 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 failing."

         Farak 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 proceeding.[2]

         The 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 health worksheets.

         Farak 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.

         The 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 in 2005.

         In 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.

         In 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 . . . ."

         That 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 yet."

         Despite 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."

         Penate, 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.

         Before 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 ...

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