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DA, Prosecutor and Investigator Sued for Malicious Prosecution

Rehberg v. Paulk, Case No. 09-11897 (C.A. 11, Mar. 11, 2010)

In this § 1983 action, Plaintiff Charles Rehberg sued former District Attorney Kenneth Hodges, specially appointed prosecutor Kelly Burke, and Chief Investigator James Paulk, alleging federal claims for malicious prosecution, retaliatory investigation and prosecution, evidence fabrication, and conspiracy to violate Rehberg’s constitutional rights. Defendants Hodges, Burke, and Paulk, in their individual capacities, appeal the district court’s denial of absolute and qualified immunities. After review and oral argument, we affirm in part and reverse in part.

From September 2003 to March 2004, Plaintiff Rehberg sent anonymous faxes to the management of Phoebe Putney Memorial Hospital (the “hospital”). The faxes criticized and parodied the management and activities of the hospital.

Defendant Hodges, then the District Attorney of Dougherty County, Georgia, and Defendant Paulk, the Chief Investigator in the District Attorney’s Office, investigated Rehberg’s actions as a “favor” to the hospital, to which Hodges and Paulk are alleged to have political connections. Rehberg alleges Hodges and Paulk lacked probable cause to initiate a criminal investigation of him.

From October 2003 to February 2004, Defendants Hodges and Paulk prepared a series of subpoenas on Hodges’s letterhead and issued the subpoenas to BellSouth and Alltel (later Sprint), requesting Rehberg’s telephone records, and to Exact Advertising, an Internet service provider, requesting Rehberg’s email records. Although no grand jury was impaneled at the time, the subpoenas purported to require appearance before a Dougherty County grand jury. Rehberg’s case was not presented to a grand jury until December 14, 2005.

Defendant Paulk gave the results of the subpoenas, consisting of Rehberg’s personal emails and phone records, to private civilian investigators, who had directed the substance of the subpoenas. These civilian investigators paid the District Attorney’s Office for Rehberg’s information, often making payments directly to BellSouth and the other subpoenaed parties, allegedly to pay debts of the District Attorney’s Office.

After receiving unfavorable press coverage of his relationships with the hospital, Hodges recused himself from prosecuting Rehberg. Burke was appointed a special prosecutor in Hodges’s place. Hodges continued to supervise Paulk and remained in communication with Burke throughout the investigation, but he “never served as the actual prosecutor of the charges against Mr. Rehberg before the Grand Jury.”


Jurisdiction: U.S. Court of Appeals, Eleventh Circuit
Related Categories: Civil Procedure , Torts
Circuit Court Judge(s)
Lanier Anderson
Ed Carnes
Frank Hull



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knew there was no probable cause to indict him, and therefore they got together hull, circuit judge: any "clearly established statutory or constitutional rights of which a reasonable fabricated expert testimony linking defendant's boot with bootprint at murder prosecution claim arises under the fourth amendment, not fourteenth amendment prosecutor's decision to bring the charge." hartman, 547 u.s. at 265, 126 s. ct. at ________________________ lauderdale, 279 f.3d 1271, 1279-80 (11th cir. 2002) (holding prosecutor who prosecutor is absolutely immune from suit for malicious prosecution.'" malley v. count 8 is against only burke. rehberg alleges burke violated his frank, 855 f.2d 956 (2d cir. 1988) (police officer, as the "complaining witness," was not inspectors and a federal prosecutor for retaliatory prosecution. because of15 incompetent officer or one who was knowingly violating the law would have done paul v. davis, 424 u.s. 693, 701-02, 96 s. ct. 1155, 1060-61 (1976)). damages21 and alltel (later sprint), rehberg lacked any further valid expectation that those and the grand jury members . . . [which], in effect, would evidence whatsoever that mr. rehberg committed an assault on anybody as he was functions normally performed by a detective or police officer." buckley, 509 u.s. official to show "that the action would have been taken anyway, independently of proceedings, including prosecutorial conduct before grand juries, statements made in this 1983 action, plaintiff charles rehberg sued former district for basis" for the prosecutor's decision to prosecute).16 james p. paulk, on december 14, 2005, a grand jury indicted rehberg on charges of rehberg's voluntary delivery of emails to third parties constituted a counts 6, 7, 8, and 10, except for the retaliatory-prosecution claim against paulk in grand jury." nonprosecutor, an official, like an inspector here, who the district court averted this settled law by connecting burke's media defendants hodges, burke, and paulk moved to dismiss these counts will not be brought against the prosecutor, who is 30 in sum, rehberg sufficiently has alleged the requisite retaliatory motive, then testified falsely before the grand jury, resulting in rehberg's indictment and with acting in both an investigatory and prosecutorial capacity, but that no appeal or claim misdemeanors, and publicly identified by the acting district attorney as having suspect. see united states v. aibejeris, 28 f.3d 97, 99 (11th cir. 1994). no 1983 liability can simple assault and harassing telephone calls. at some unspecified time, rehberg prosecutor was not absolutely immune for acting as a witness in personally attesting to the truth of whether the unconstitutionally motivated inducement succeeded, but will create after the email is sent to and received by a third party. see guest v. leis, 255 f.3d 431, 96 s. ct. at 995. prosecutors are immune for appearances in judicial count 10 alleges hodges, burke, and paulk engaged in a conspiracy to 18 records. although no grand jury was impaneled at the time, the subpoenas 475 u.s. at 340, 106 s. ct. at 1096, which concluded that a police officer did not receive rights by prosecuting him if the prosecutor also is immune from liability for in the complaint and all reasonable inferences therefrom. jackson v. okaloosa county, fla., 21 circuit affirmed absolute immunity for the retaliatory decision to prosecute moore rehberg withdrew count 5 against dougherty county in response to its claim of sovereign substantive due process. against mr. rehberg and such charges would not have been brought if there was no not identify another constitutional theory that might support a 1983 action for false statements full scope of absolute prosecutorial immunity and is absolutely immune for jones, we reject rehberg's "complaining witness" exception to absolute immunity as we already stated above, did not violate rehberg's fourth amendment rights. two circuits carved out a complaining-witness exception to absolute immunity for false9 the subpoenas. as an advocate for the state"); see also malley, 475 u.s. at 340-41, 106 s. ct. at the postal inspectors. id. at 255, 126 s. ct. at 1701. as to the prosecutor, the d.c. for the eleventh circuit such a thing." lassiter v. ala. a&m univ., 28 f.3d 1146, 1149 (11th cir. 1994) qualified immunities. after review and oral argument, we affirm in part and violate rehberg's constitutional rights. defendants hodges, burke, and paulk, in proposition that fabricating evidence violates an accused's constitutional rights, and thus since this court subsequently applied mastroianni in jones and rowe, in each circuit affirmed the denial of qualified immunity and allowed moore's retaliatory- charged." at a pretrial hearing on april 10, 2006, defendant burke announced the of a previously recognized property or liberty interest in addition to damaging the retaliation for rehberg's exercise of first amendment rights, hodges and paulk stage to link the accused to a crime. immunity, but a prosecutor who participated in the search of a suspect's apartment of that testimony as evidence of the witness's membership in a conspiracy prior to plaintiff's reputation." id. (citations and quotation marks omitted). the "stigma-22 993-94 (1976). "[a]t common law, `[t]he general rule was, and is, that a enforcement agencies. paulk later admitted that he never interviewed any in his official capacity as district interlocutory order. see jones v. cannon, 174 f.3d 1271, 1280-81 (11th cir. 1999); maggio v. prepared a series of subpoenas on hodges's letterhead and issued the subpoenas to prosecution. hartman, 547 u.s. at 265, 126 s. ct. at 1701. accordingly, rehberg absolute immunity for the act of testifying to the grand jury. briscoe v. lahue, complaints" with malice and without probable cause and submitting them in 513 u.s. 1085, 115 s. ct. 740 (1995) (rejecting plaintiff's arrest as a sufficient investigation because they lacked confidence in the police department's ability to immunity to hodges and paulk on rehberg's subpoena claims. defamatory statements. damage to reputation alone is insufficient to state a under the fourteenth amendment. see albright v. oliver, 510 u.s. 266, 272, 114 receive absolute immunity for fabricating evidence, because investigating and to initiate a retaliatory prosecution. dickerson v. alachua county commission, proffered perjured testimony and fabricated exhibits at trial is entitled to absolute and fourteenth amendment rights (count 6); (2) retaliatory investigation and mastroianni, 173 f.3d at 1367. in other words, because the only evidence to show for all activities that are "`intimately associated with the judicial phase of the injury alleged. cypress ins. co. v. clark, 144 f.3d 1435, 1438 (11th cir. 1998). prosecutor cannot be liable for "conspiracy" to violate a defendant's constitutional brought under 1983. imbler v. pachtman, 424 u.s. 409, 427-28, 96 s. ct. 984, which the defendant investigator was the sole witness); kelly v. curtis, 21 f.3d7 county, which effectively dismissed count 9 against hodges because an official capacity claim however, because [the prosecutor] has absolute immunity from damages for these is entitled to only qualified immunity). of the `stigma' which may result from defamation by the government in a variety of contexts, internet providers. mr. paulk and mr. hodges in investigating mr. rehberg . . ."), 157-61 in hartman, plaintiff moore brought a bivens action against postal14 document such as a false affidavit or false certification. rather, hodges and paulk same actions could be used to prove him liable on a conspiracy theory involving that the installation of a pen register does not constitute a search under the fourth was arrested and briefly detained pursuant to an arrest warrant issued as a result of from september 2003 to march 2004, plaintiff rehberg sent anonymous the denial of absolute or qualified immunity on a motion to dismiss is an appealable5 f.3d at 1282 ("it would be cold comfort for a prosecutor to know that he is interpreting and applying the law in similar circumstances"). hodges and paulk could not have procured the first indictment because there was no other evidence. point to some constitutional wrong, other than the indictment and related events, in c. second indictment invoke the procedural protection of the due process clause." paul, 424 u.s. at 701, 96 s. ct. at e. count 10 (conspiracy) prosecution claim to proceed against them, even though moore had not shown an the district court cited riley v. city of montgomery, ala., 104 f.3d at 1253, for the24 40 s. ct. 807, 812 (1994). rehberg does not allege dougherty county or the against the prosecutor was before the supreme court. hartman, 547 u.s. at 262 n.8, 126 s. ct. function as advocate." jones, 174 f.3d at 1281. such absolute immunity also the state, he is not protected by absolute immunity but enjoys only qualified prosecuting official" combined with an absence of probable cause will create "a statements. the district court erred by not finding burke immune for the general's office received absolute immunity for false testimony to a grand jury, at performed, not the identity of the actor who performed it." buckley v. testimony and the confidential nature of grand jury together decided to investigate rehberg and took several steps during the trial); burns, 500 u.s. at 492, 111 s. ct. at 1942 (holding prosecutor was alleging paulk admitted that "he never interviewed any witnesses or gathered any defendants hodges, burke, and paulk, in their individual capacities, appeal and the prosecutor's concealment of exculpatory evidence from the grand jury, burke's media statements caused rehberg to be indicted. rehberg's allegations regarding the subpoenas to his telephone and internet protection against "unreasonable" searches and seizures was made applicable to the states retaliatory inducement to prosecute. the consequence is burke's statements to the media, however, are not cloaked in absolute placed in the third party will not be betrayed." united states v. miller, 425 u.s. evidence, for which neither absolute nor qualified immunity is available." f.3d at 1350; swann v. s. health partners, inc., 388 f.3d 834, 836 (11th cir. 2004). whether to adopt a "complaining witness" exception because there was no factual finding in that constitutional claims. we discuss absolute and qualified immunity and then5 id. at 261-62, 126 s. ct. at 1704-05 (emphasis added). to sue for retaliatory absence of probable cause, and but-for causation (i.e., that burke would not have rehberg's complaint also alleges a "retaliatory investigation" claim against attach merely because the government initiated a criminal investigation. f.3d 705, 707 (d.c. cir. 2000). the district court dismissed the criminal charges office, investigated rehberg's actions as a "favor" to the hospital, to which conduct for which he was not immune"). immunity; and count 10's conspiracy claim fails. the only surviving claim from protected by absolute immunity. hartman, 547 u.s. at 261-62, 126 s. ct. at 1704- acting as a witness in personally attesting to truth of averments in a "certification jury testimony, for which paulk receives absolute immunity.10 flows from the injury to their reputation. but so long as such damage flows from injury caused itself and to the alleged conspiracies to present false testimony. jones, 174 f.3d at 25 enjoys absolute immunity from allegations stemming from the prosecutor's amendments. process just because they are made by a prosecutor," and they are not part of the absolute immunity does not depend entirely on a defendant's job title, but initiation of a prosecution, the presentation of the state's case in court, or actions before carnes, hull and anderson, circuit judges. purchase multiline readers and criticized its reliance on single-line readers. id. at 253, 126 s. ct. to evaluate claims of qualified immunity, the court considers whether (1) hodges and paulk both receive qualified immunity for the retaliatory investigation conspiracy claims against corporate or government actors accused of conspiring officials from subjecting an individual to retaliatory actions, including criminal georgia, and defendant paulk, the chief investigator in the district attorney's "the supreme court . . . held that injury to reputation, by itself, does not constitute for false grand jury testimony.9 houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . also an additional constitutional injury, tied to a previously recognized d. count 8 (fabrication of evidence and press statements against burke) a. hartman v. moore 1706. importantly, the absence of probable cause "is not necessarily dispositive" immunities granted to witnesses in judicial proceedings required giving absolute prosecution claim against paulk alone. the intracorporate conspiracy doctrine bars investigation because each of them had retaliatory animus. these allegations of hotz's home, and dr. hotz never reported an assault or burglary to law secrecy of grand jury proceedings." united states v. sells eng'g, inc., 463 u.s. an immunity exception for grand jury testimony would eviscerate the secrecy of grand jury differently, the only evidence rehberg alleges was fabricated is paulk's false grand accepting them as true.1 paulk's false testimony to the grand jury. bellsouth and alltel (later sprint), requesting rehberg's telephone records, and to second indictment would be dismissed, but burke did not dismiss it. on july 7, rehberg or that the defendants relied on burke's media statements as probable manipulation of evidence before the grand jury, and failure to disclose exculpatory evidence/charges." this was error. the "stigma-plus" test requires the plaintiff to since paulk receives absolute immunity for his false testimony before the order to support a 1983 constitutional claim based on defamation. "identifying of investigation agent, "engaged in a pretestimonial conspiracy to present false in count 7, rehberg alleges hodges and paulk violated his first presenting paulk's perjured testimony to the grand jury; and (3) making counts, including these four federal 1983 claims at issue in this appeal: (1)3 juncture, the district court did not err in denying absolute and qualified immunity alleges hodges and paulk subpoenaed the emails directly from the third-party directly. 23 we already determined supra that paulk receives absolute immunity for the actual ii. immunity law 2006, the state trial court ordered it dismissed. assumption that it will be used only for a limited purpose and the confidence 1544, 1553 (11th cir. 1994) (holding detective immune for grand jury testimony). the deprivation of a liberty or property interest protected under the fourteenth fitzsimmons, 509 u.s. 259, 269, 113 s. ct. 2606, 2613 (1993); accord imbler, 424 recoverable in a bivens action."). the initiation of a criminal investigation in and of itself does not implicate a federal19 unreasonable search and seizure.12 absolute immunity for giving pre-indictment legal advice to the police). a rehberg was indicted or after, but the complaint also does not allege any fact showing that a. paulk's grand jury testimony mail. hartman, 547 u.s. at 252, 126 s. ct. at 1699. he lobbied the u.s. postal service to claims in counts 1, 2, 3, and 4 against paulk were not on appeal. through qualified immunity. mastroianni, 173 f.3d at 1367. this court first stressed that "a witness has because he exercised first amendment free speech rights (count 7); (3) liberty interest "in connection with" the claimed defamation. even liberally ("[a] witness's absolute immunity from liability for testifying forecloses any use retaliatory investigation is not clearly established. the supreme court has never immunity for the pre-indictment conduct of conspiring to make up and present statements violated. we assume rehberg asserts a fourteenth amendment due process claim. inspectors drafted "witness statements" for other witnesses and provided them to on august 22, 2004 and five counts of harassing phone calls. in reversing the d.c. circuit's denial of qualified immunity to the postal consisting of the corporation and its agents to conspire with itself, just as it is not montgomery, ala., 104 f.3d 1247, 1253 (11th cir. 1997) (no immunity for police 2009). burke's immunity for the alleged press statements must arise, if at all, absolute immunity accordingly applies to the prosecutor's actions "in subpoenas to bellsouth, alltel, and exact advertising, without any pending him to government authorities, even if the information is revealed on the because hodges and paulk's issuance of the subpoenas did not violate rehberg's expectation of privacy in an e-mail that had already reached its recipient"); united prosecuted rehberg but for paulk's false testimony). therefore, at this pleading 323 f.3d at 883 (first amendment retaliatory-prosecution claim is defeated by the plaintiff rehberg also sued dougherty county and hodges, in his official capacity.4 absolutely immune for participating in the conspiracy to fabricate paulk's grand grand jury, hodges and paulk are similarly immune for their alleged conspiracy to only within a government entity, and thus the intracorporate conspiracy doctrine preparatory for these functions"); hart v. hodges, 587 f.3d 1288, 1297 (11th cir. 8, except for the alleged media statements, for which he receives qualified 34 reject[ed] carving out an exception to absolute immunity for grand jury testimony, but even if we assume rehberg has stated a constitutional violation by the witness's membership in an unconstitutional conspiracy prior to his testimony. rehberg's complaint also alleges state law claims for negligence (counts 1 & 2) and3 this court aligned itself with the third circuit's decision in kulwicki v. dawson, amendment of the constitution and does not warrant invocation of the 1096 (concluding police officer was not absolutely immune for drafting "felony prosecution. hartman, 547 u.s. at 252, 126 s. ct. at 1699. the supreme court previously recognized constitutional deprivation flowing from burke's alleged [] an expectation of privacy in transmissions over the internet or e-mail that have searched or item seized. minnesota v. carter, 525 u.s. 83, 88, 119 s. ct. 469, 473 two-pronged analysis may be done in whatever order is deemed most appropriate are accused of fabricating together only the testimony paulk later gave to the grand grand jury testimony. see, e.g., harris v. roderick, 126 f.3d 1189, 1199 (9th cir. 1997) (deputy directed the substance of the subpoenas. these civilian investigators paid the in his individual capacity and conduct and subpoenas. person would have known." harlow v. fitzgerald, 457 u.s. 800, 818, 102 s. ct. that a plaintiff like moore must show that the fourteenth amendment due process claim. cypress, 144 f.3d at 1437-38 d. third indictment together within an organization, preventing rehberg's claim that paulk "conspired" construed, rehberg's complaint does not allege a procedural due process claim qualified immunity shields government officials who perform discretionary amendment." behrens v. regier, 422 f.3d 1255, 1259 (11th cir. 2005) (citing allege a constitutional claim based on the press statements. this lack of a attorney's office to indict him, "[n]otwithstanding very limited evidence." id. at for the case. pearson v. callahan, 555 u.s. ___, 129 s. ct. 808, 821 (2009). count 7 of rehberg's complaint does not name burke as a defendant, but count 717 paulk conspired with anyone outside of the district attorney's office. see denny, cause to arrest rehberg. paul's "stigma-plus" test is not satisfied by simply tangible interests such as employment, is either `liberty' or `property' by itself sufficient to constitutional claim means burke receives qualified immunity for his press 05. search warrant during a probable cause hearing. burns v. reed, 500 u.s. 478, 490- 36 evidence was fabricated and that this fabrication was a constitutional violation, nothing in the employees; no outsiders are alleged to be involved"). the "conspiracy" occurred more specifically, a person does not have a legitimate expectation of privacy affirmed in part, reversed in part, and remanded. with a criminal offense. case was not presented to a grand jury until december 14, 2005. recognized that the proper functioning of our grand jury system depends upon the moore's company manufactured a multiline optical character reader useful in sorting15 testimony, and because yeomans was immune for that testimony, we concluded 1204-05 (10th cir. 2008) ("every federal court to address this issue has held that violation must itself flow from the alleged defamation.24 the district court correctly denied absolute and qualified immunity. we reverse the and (4) conspiracy to violate rehberg's constitutional rights under the first, constitutional property or liberty interest, flowing from the defamation. cypress, rehberg also alleges hodges and paulk acted in retaliation for rehberg's criticisms 31 testimony as it relates back to yeomans' pretestimonial acts and statements." plaintiff rehberg filed a verified complaint against defendants hodges, possible for an individual person to conspire with himself"); denny v. city of on may 1, 2006, the state trial court issued two orders dismissing all charges 502, 507-08 (1997); see also van de kamp, 129 s. ct. at 861. "a prosecutor exclusionary rule."). this sort of precedent, rehberg cannot show that the retaliatory investigation 854 f.2d 421, 422-24 (11th cir. 1988) (concluding investigator for state attorney 37 "extends to a prosecutor's acts undertaken . . . in preparing for the initiation of 3 alleged in count 7; burke receives absolute immunity for the allegations in count counts 6 and 8 and why hodges receives absolute immunity for the retaliatory district court's order in part and remand this case for the district court to grant the assault or burglary. and the alleged "harassing" phone calls to dr. hotz all were record will remain with him and his wife and children for the rest of their lives." u.s. court of appeals i.e., violation of his right to be free from prosecution based upon false 26 absolute immunity from civil liability based on his grand jury testimony. see 174 f.3d at 1287 n.10. the jones court reasoned that allowing civil suits for false this court's precedent, and the pertinent state's supreme court precedent, and hartman indicates that to establish a prima facie case of this but-for aggravated assault, burglary, and six counts of "harassing phone calls." burke was acknowledging white v. frank relies on malley, the jones court noted that carving out support of the first indictment. without paulk's allegedly false testimony, burke conduct taken in an investigatory capacity as opposed to a prosecutorial capacity. albany, 247 f.3d 1172, 1190 (11th cir. 2001) (applying intracorporate conspiracy initiating a prosecution and in presenting the state's case." imbler, 424 u.s. at for determination of probable cause" for an arrest warrant and was not absolutely f.3d 1531, 1534 (11th cir. 1994). in reviewing a rule 12(b)(6) motion to dismiss, we accept as true the factual allegations1 12 supporting the prosecutor's decision. id. at 265, 126 s. ct. at 1706; see also wood, carving out such an exception and imposing civil liability count 6 alleges defendants hodges and paulk violated rehberg's fourth warrant in malley and the personal certification for an arrest warrant in kalina. 969 f.2d 1454, 1467 n.16 (3d cir. 1992), which rejected the "complaining b. qualified immunity immunity for paulk's grand jury testimony and for the related pre-indictment distilled to its essence, defendants' alleged pre-indictment conduct burke is not alleged to have participated in subpoenaing rehberg's telephone and20 fabricate and present false testimony to the grand jury. rowe, 279 f.3d at 1282 no. 09-11897 ("indeed, [in siegert v. gilley, 500 u.s. 226, 111 s. ct. 1789 (1991)] the rehberg successfully induced the prosecution and was the "but-for" cause of the 39 247 f.3d at 1191 ("the only two conspirators identified . . . are both city not himself make it, and the cause of action will not be we first review hartman v. moore, 547 u.s. 250, 126 s. ct. 1695 (2006), participation in a press conference were not protected by absolute immunity); governmental functions from civil liability so long as their conduct does not violate constitutional tort.19 rehberg alleges his arrest was an unreasonable seizure. the fourth amendment6 of physical or expert evidence that was falsely created during the investigative 33 strictly for retaliatory prosecution, but for successful 6 material before trial. moore, 213 f.3d at 708. as to the postal inspectors, the d.c. rehberg does not allege, for instance, that hodges and paulk fabricated physical10 14 22 investigation. paulk stated that he and hodges initiated and handled the necessary to challenge his indictments and arrest. indeed, rehberg's successful grand jury and secured a third indictment against rehberg, charging him with ________________________ advocate and the ancillary events (such as press conferences) surrounding the prima facie inference that the unconstitutionally motivated inducement infected the make up and present paulk's false testimony to the grand jury. our precedent therefore rehberg failed to satisfy paul's "stigma-plus" test and fails to _________________________ 21 through the fourteenth amendment. major league baseball v. crist, 331 f.3d 1177, 1179 n.4 immunity from 1983 suit to police officer accused of giving false testimony at mar 11, 2010 false testimony before the grand jury and then the defendants' pre-indictment b. first indictment iii. count 6 malicious prosecution coordinated and joint actions are replete throughout the complaint. e.g., compl. may have influenced the prosecutorial decision but did absolutely immune from direct liability for actions taken as prosecutor, if those bars count 10 against paulk. the district court erred in not dismissing count 10. are involved in this appeal. immunity, and, alternatively, qualified immunity. the district court denied the witnesses or gathered evidence indicating rehberg committed an aggravated subpoenas covered information rehberg had provided voluntarily to third parties on february 15, 2006, defendants burke and paulk initiated charges before defendant. "while we have in a number of our prior cases pointed out the frequently drastic effect22 close political connections and personal relationships and that chilling rehberg's directly to bellsouth and the other subpoenaed parties, allegedly to pay debts of rehberg's claims of malicious prosecution and the presentation of perjured (11th cir. 2003). 4 174 f.3d at 1289-90 (no immunity for fabrication of bootprint); riley v. city of linking defendant's boot to bootprint at murder scene and post-indictment investigator james paulk, alleging federal claims for malicious prosecution, grand jury, and giving false statements to the media against burke only (count 8); providers all recount pre-indictment investigative conduct by hodges and paulk. versus amendment free speech rights by retaliating against him for his criticism of the invasion of privacy (counts 3 & 4) against paulk, which the district court refused to dismiss. at alleged decision to prosecute rehberg, even if made without probable cause and clerk prosecution as distinct for purposes of immunity but not for purposes of defining rehberg alleges "[t]here was no probable cause for the underlying criminal charges the complaint does not clearly state whether burke made his media statements before23 did. doctrine to city, city fire chief, and city manager). rehberg has not alleged that would not have been initiated without his urging. in the united states court of appeals as noted above, only qualified immunity, not absolute immunity, applies to 27 (concluding prosecutor's pre-indictment fabrication of third-party expert testimony a `plus' other than the indictment, trial, and related events for which the defendants defendant paulk gave the results of the subpoenas, consisting of rehberg's defendants' motions. with his name and have caused and will cause significant personal, professional a bivens (or 1983) action for retaliatory prosecution depositions from the prosecutor, the grand jury witnesses, in a footnote, the supreme court noted that moore's complaint charged the prosecutor16 defined retaliatory investigation, standing alone, as a constitutional tort, hartman, under the fourth amendment separate and distinct from [rehberg's] malicious prosecution . . . see, e.g., paul, 424 u.s. at 712, 96 s. ct. at 1165-66; cypress, 144 f.3d at 1436. rehberg does hodges and paulk are alleged to have political connections. rehberg alleges trial, before a grand jury, or at a post-conviction hearing."); strength v. hubert, c. retaliatory investigation claim attorney of dougherty county (1998); katz v. united states, 389 u.s. 347, 88 s. ct. 507 (1967). the supreme "constitutional rights" by (1) "participat[ing] in fabricating evidence"; (2) personal emails and phone records, to private civilian investigators, who had paulk receive absolute or qualified immunity for all of the conduct alleged in case concluding that absolute immunity applied equally both to the false testimony internet service provider to which rehberg transmitted the messages. lacking a defendants are claiming." b. rehberg's retaliatory-prosecution claims proceedings. the remedy for false grand jury testimony even if false and even if [the detective] were construed to be a complaining 15 defendants-appellants, involves a functional approach granting immunity based on conduct. jones, 174 at 273, 113 s. ct. at 2616; accord jones, 174 f.3d at 1281-82 ("although violate rehberg's constitutional rights under the first, fourth, and fourteenth qualified immunity when performing a function that is not associated with his role statements caused rehberg's indictments and arrest. for example, there is no23 "reject[ed] an exception for the testimony of `complaining witnesses'"). in jones, saying: (1) "[i]t is never free speech to assault or harass someone, no matter who complaint connects hodges's and paulk's alleged evidence fabrication to burke's press rehberg's claims. and dr. hotz's testimony (which rehberg does not allege was false). hodges and paulk's retaliatory animus (count 7) does not create a distinct recognize as reasonable") (quotation marks omitted); accord united states v. free from malicious prosecution and unreasonable detention under the fourth a special prosecutor in hodges's place. hodges continued to supervise paulk and press. defendant burke conducted interviews with the press and issued statements claim[]." wood v. kesler, 323 f.3d 872, 883 (11th cir. 2003). "instead, the only cause of rehberg alleges fabrication in this case, he satisfied paul's "stigma-plus" test. even assuming with this immunity background, we turn to rehberg's claims. law enforcement officers. buckley, 509 u.s. at 273, 113 s. ct. at 2616; burns, this juncture, defendant paulk has not appealed the district court's rulings on those state law events." buckley v. fitzsimmons, 20 f.3d 789, 797 (7th cir. 1994), cert. denied, for the reasons explained above, hodges and paulk receive absolute warrant. the defendants conspired to do things they already are immune from doing gathering evidence falls outside the prosecutor's role as an advocate. see buckley, for . . . false testimony deceiving the grand jury. to course of business. smith, 442 u.s. at 743-44, 99 s. ct. 2582 ("[e]ven if prove or to defend against such a claim would necessitate on march 1, 2006, defendants burke and paulk appeared before a third plaintiff's constitutionally recognized legal rights." cypress, 144 f.3d at 1438. the arrest and imprisonment as the loss of liberty does not assist [the plaintiff], court "consistently has held that a person has no legitimate expectation of privacy criminal process.'" van de kamp v. goldstein, __ u.s. __, 129 s. ct. 855, 860 for all these reasons, we conclude hodges and paulk are entitled to absolute 5 support of an application for arrest warrants). participation in evidence fabrication, calling paulk to give false testimony to the action for retaliation that arguably applies here is retaliatory prosecution in violation of the first speech was a motivating factor in all of hodges's and paulk's conduct in sipple, 211 f.3d 1346, 1350 (11th cir. 2000) (citing mitchell v. forsyth, 472 u.s. 511, 530, 105 statements "wrongfully damaged [his] reputation." plaintiff "contend[ed] that yeomans committed numerous acts in furtherance of a strength, 854 f.2d at 425, relying on briscoe v. la hue, 460 u.s. 325, 103 s. ct. absence of probable cause for the criminal charges against him. advocate and performing "investigative" functions more commonly performed by arrest) as the basis for constitutional injury supporting a 1983 defamation claim. the action complained of anyway. id. eleventh circuit to defendant paulk on rehberg's retaliatory-prosecution claim. burke, and paulk, in their individual capacities. rehberg's complaint alleges ten witness testimony in judicial proceedings: (2009) (quoting imbler, 424 u.s. at 430, 930 s. ct. at 995); accord jones, 174 f.3d hodges or paulk fabricated or planted. there is no allegation of a pre-indictment 24 after unlawfully entering dr. hotz's home. in fact, rehberg has never been to dr. rehberg contested the legal sufficiency of the first indictment. on february 9 (1971). retaliatory investigation and prosecution, evidence fabrication, and conspiracy to a. absolute immunity burglary," and paulk's false testimony was the only evidence burke presented in (conspiracy claim). first noted, "as a general matter the first amendment prohibits government in the numerical information he conveys to a telephone company in the ordinary witness." jones, 174 f.3d at 1287 n.10; see rowe, 279 f.3d at 1285 (stating jones thompson, 936 f.2d 1249, 1250 (11th cir. 1991) ("the supreme court has held that yeomans was absolutely immune for conspiracy to present or give grand jury already arrived at the recipient"); see also united states v. perrine, 518 f.3d 1196, against rehberg because the third indictment did not sufficiently charge rehberg charles a. rehberg, absolutely immune for false grand jury testimony). these decisions rely on malley v. briggs, during trial, examination of witnesses, and presentation of evidence in support of a third parties would not turn the information over to law enforcement officers. in short, rehberg's defamation allegations are too generalized to show a evidence indicating that mr. rehberg committed any aggravated assault or as to paulk, rehberg must show investigator paulk's retaliation against against the "non-prosecuting official" who successfully induced the prosecutor to existence of probable cause). a retaliatory motive on the part of a "non- preparing and filing an "information charging respondent with burglary and a 1289 ("to allow a 1983 claim based on subornation of perjured testimony where the plaintiff has alleged a violation of a constitutional right; and (2) whether the absolutely immune for "appearance in court in support of an application for a handle the investigation on its own. statements are these: "mr. rehberg . . . was subjected to extensive publicity in the individual defendants denied him the constitutionally required procedures of a retaliatory investigation would ever justify recognizing such an investigation exact advertising, an internet service provider, requesting rehberg's email 200 f.3d 761, 767 (11th cir. 2000) ("[i]t is not possible for a single legal entity 1285. hodges and paulk accordingly do not receive absolute immunity for id.; mastroianni, 173 f.3d at 1367. have prosecuted rehberg but for paulk's retaliatory motive and conduct.17 144 f.3d at 1436-37. served as the actual prosecutor of the charges against mr. rehberg before the and for which rehberg did not have a legitimate expectation of privacy. thus, the related to the faxes rehberg had already sent criticizing the hospital. 1282; jones, 174 f.3d at 1289. in any event, rehberg cannot use the prosecution itself (the indictment and any retaliatory animus." id. at 261, 126 s. ct. at 1704. in other words, the see brown v. neumann, 188 f.3d 1289, 1290 (11th cir. 1999). thus only counts 6, 7, 8, and 10 therefore, the only remaining "plus" rehberg identifies is the right to be required deprivation of any previously recognized constitutional property or liberty answers this question too. see mastroianni, 173 f.3d at 1367; rowe, 279 f.3d at would remain private, this expectation is not one that society is prepared to burke about the decision to prosecute, even after hodges recused. hodges's interest. the only factual allegations rehberg makes regarding burke's media fake story under oath to the grand jury, leading to rehberg's indictment and arrest. (en banc). f. conclusion indictment and as a discovery device for private civilians. we first discuss paulk's hospital and were all made without probable cause.13 nature of grand jury testimony, and eviscerate the traditional absolute immunity for fourth amendment's privacy expectation") (collecting cases). states v. lifshitz, 369 f.3d 173, 190 (2d cir. 2004) (an individual may not "enjoy 509 u.s. at 262-64, 113 s. ct. at 2610-11 (no immunity for prosecutor who at 1288 ("[p]rosecutors and witnesses have absolute immunity for claims of rehberg's complaint alleges damage to his reputation but does not allege the "a person may not be prosecuted for conspiring to commit an act that he rehberg's subpoena allegations do not state a constitutional violation. the11 right was "clearly established" at the time of the defendant's misconduct. this subpoenas did not violate rehberg's fourth amendment rights to be free of they are and no matter how much you don't like them," and (2) "it would be immunity for the issuance of subpoenas alleged in count 6; hodges receives this appeal is the retaliatory-prosecution claim in count 7 against paulk, for which 13 remained in communication with burke throughout the investigation, but he "never alleging that hodges and paulk initiated an investigation and issued subpoenas in retaliatory motive." rehberg supports this alleged lack of probable cause by 113 s. ct. at 2618 ("the conduct of a press conference does not involve the to the media. this line of cases does not establish the proposition that reputation alone, apart from some more kenneth b. hodges, iii, amendment, there is no substantive due process right to be free from malicious dismiss on the basis of immunity and for failure to state a constitutional violation. maggio, 211 the second and third indictments. conspiracy to present false testimony before the grand jury convened, the record motion for an arrest warrant"); buckley, 509 u.s. at 275-77, 113 s. ct. at 2616-18 the city of albany police department did not participate in the2 a view to promote prosecution is a constitutional tort." hartman, 547 u.s. at 262 resulting in his indictment and arrest. rehberg alleges that (1) hodges and paulk6 itself support[ed] such an inference only if we consider as evidence yeomans' ________________________ 32 immune for that witness act, but that prosecutor was absolutely immune for 10).4 even if caused solely by paulk's and his unconstitutional retaliatory animus, is not prohibit the obtaining of information revealed to a third party and conveyed by issued a second indictment, charging rehberg with simple assault against dr. hotz causal connection, a plaintiff must plead and prove both (1) a retaliatory motive on in mastroianni v. bowers, 173 f.3d 1363 (11th cir. 1999), this court declined to decide8 grand jury testimony itself. the question before us now is whether absolute prosecutions, for speaking out." id. at 256, 126 s. ct. at 1701 (citations and 1160-61; see also siegert v. gilley, 500 u.s. 226, 234, 111 s. ct. 1789, 1794 (1991) ("most in order for fourth amendment protections to apply, the person invoking the absolutely immune for actions taken as an advocate, the prosecutor has only the prosecutor, and paulk was the sole complaining witness against rehberg before media where he was identified as being charged with multiple felonies and see id. at 256, 261, 126 s. ct. at 1701, 1704 (discussing "but-for cause" and "but- protection must have an objectively reasonable expectation of privacy in the place regarding the subpoenas for his phone and fax information. overruled on other grounds, whiting v. traylor, 85 f.3d 581 (11th cir. 1996).7 if a prosecutor functions in a capacity unrelated to his role as an advocate for see bivens v. six unknown fed. narcotics agents, 403 u.s. 388, 91 s. ct. 199914 "complaining witness" before the grand jury. however, in jones, "we expressly a prima facie inference that it did. id. the burden then shifts to the defendant dougherty county, we review rehberg's version of the events as alleged in his complaint, defendant official will not be liable if he can show the prosecutor would have taken of averments in a certification affidavit supporting an application for probable cause for an arrest actually prosecuting the defendant. rowe, 279 f.3d at 1282. and a witness's statements. 7 launched criminal investigations against moore and pressured the united states 126 s. ct. at 1700. his taking the stand"). i. factual and procedural background for the middle district of georgia this doctrine is known as the "stigma-plus" test, cannon v. city of w. palm allegation that the grand jury relied on burke's press statements in indicting safeguards, the individual must be not only stigmatized but also stigmatized in at 1699. bring charges that would not otherwise have been brought, as follows: and submitting them in support of an application for arrest warrants. the supreme court held testimony. id. ("because we may not consider such testimony as a factor upon 11 accordingly are entitled to qualified immunity for rehberg's retaliatory "to establish a liberty interest sufficient to implicate the fourteenth amendment witness" exception to absolute immunity for false grand jury testimony. jones, alleging a constitutional violation somewhere in the case. the constitutional must show that prosecutor burke (himself or with hodges's influence) would not challenges to the three indictments show otherwise. and, under the fourteenth the seventh circuit considered this precise situation, concluding the plaintiff must amendment." id. present that fabricated evidence to the grand jury; (2) paulk, at hodges's direction, suspicion of wrongdoing by a suspect before the government can begin investigating that case that the defendant georgia bureau of investigation officer was equivalent to a "complaining to absolute immunity for his actions in this case"). 10 u.s. at 431 n. 33, 96 s. ct. at 995 n. 33. as a special prosecutor appointed to stand in for hodges, burke receives the procure wrongful indictments were in retaliation for his faxes and criticism of the c. subpoenas during investigation valid expectation of privacy in that email information, rehberg fails to state a actor that causes injury to professional reputation violates procedural due search warrant and the presentation of evidence at that hearing"); jones, 174 f.3d 418, 424, 103 s. ct. 3133, 3138 (1983) (quotation marks omitted). based on filed with malice, fabricated evidence (i.e., paulk's false testimony), and decided to not allege hodges and paulk illegally searched his home computer for emails, but made up a story about rehberg, and then paulk (at hodges's direction) told that against hodges is another moniker for a claim against dougherty county, hodges's employer. b. hodges and paulk's pre-indictment investigation rehberg does not specifically identify what constitutional provision burke's media21 rehberg contested the sufficiency of the second indictment too. rehberg retaliatory-prosecution suit cannot be brought against the prosecutor, but only still receive qualified immunity because rehberg's right to be free from a possess absolute prosecutorial immunity." id. at 798. rehberg's involvement. the only evidence presented to the grand jury was paulk's testimony liability and damages. committed an assault and burglary. the damage of three indictments on his public 2, 2006, defendant burke dismissed and nol-prossed the first indictment. jury. no evidence existed until paulk actually testified to the grand jury. stated 460 u.s. 325, 326, 103 s. ct. 1108, 1111-12 (1983) (affirming that common-law absolute immunity for initiating a retaliatory prosecution as alleged in count 7; show that he induced the prosecutor to bring charges that the fourth amendment provides: "the right of the people to be secure in their persons,12 fourth, and fourteenth amendments, against hodges, burke, and paulk (count the very detailed allegations in rehberg's complaint satisfy the two officer's planting of cocaine). all of these cases involved a particular discrete item allegations in count 8. the only actual investigatory conduct alleged is the issuance of subpoenas, which, alleged here violated his first amendment rights. see oliver v. fiorino, 586 f.3d pursuant to federal rule of civil procedure 12(b)(6). they claimed absolute s. ct. 2806, 2817-18 (1985)). we review de novo the district court's denial of a motion to quotation marks omitted). the supreme court, however, explained that a individual capacity, 253-54, 126 s. ct. at 1699-1700. although they did not testify, the postal absolute immunity for drawing up "felony complaints" with malice and without probable cause alleged he was "nowhere near dr. hotz on august 22, 2004," and "[t]here was no at 437, 96 s. ct. at 998). in 1983 actions, prosecutors have absolute immunity emasculate both the absolute immunity for grand jury connection with . . . [a] government official's conduct [that] deprived the plaintiff fax numbers he dialed. once he voluntarily provided that information to bellsouth 35 district attorney's office for rehberg's information, often making payments ludicrous to say that an individual has the right to go onto someone else's property beach, 250 f.3d 1299, 1302 (11th cir. 2001), and requires the plaintiff to show to a plaintiff's reputation "are only recoverable in a section 1983 action if those together as a favor to the hospital, with malice and without probable cause, and absolute immunity for testifying prevents any use of that testimony as evidence of "plus" under the stigma-plus test). the seventh circuit explained that, "the requirements for a prima facie case of retaliatory prosecution: non-prosecutor prosecute. instead, the defendant will be a statements to "the alleged fourteenth amendment violation alleged by plaintiff, hodges and paulk lacked probable cause to initiate a criminal investigation of him. constitutional right. the constitution does not require evidence of wrongdoing or reasonable faxes to the management of phoebe putney memorial hospital (the "hospital"). it is important to point out that hodges and paulk generally would not 898, 907 (11th cir. 2009) ("in order to determine whether a right is clearly u.s. 735, 743-44, 99 s. ct. 2577, 2582 (1979). "[t]he fourth amendment does (excepting the subpoenas) is this: hodges and paulk, acting as investigators, got by the defendant to a plaintiff's reputation, it may be recoverable under state tort law but it is not e. district court proceedings and burn a cross under the guise of free speech, which is tantamount to what these a conspiracy in the pre-indictment phase was yeomans's later false grand jury prosecutor is not entitled to absolute immunity when he "performs the investigative political speech was a substantial or motivating factor in the wrongful conduct of 16 appeal from the united states district court the faxes criticized and parodied the management and activities of the hospital. hodges and paulk, however, do receive qualified immunity because and fourteenth amendment rights through their "malicious prosecution" of him, damages were incurred as a result of government action significantly altering the in mastroianni, the plaintiff alleged defendant yeomans, a georgia bureau a prosecutor loses the cloak of absolute immunity by stepping out of his role as an d. c. docket no. 07-00022-cv-wls-1 to the extent rehberg relies on the fourth amendment, "there is no retaliation claim13 fourth amendment violation for the subpoenas for his internet records. the allegedly perjured testimony itself is cloaked in absolute immunity would be to plaintiff who uses a `stigma plus' approach to avoid paul and siegert must identify from october 2003 to february 2004, defendants hodges and paulk and economic damages to mr. rehberg." rehberg alleges burke's media the part of the non-prosecutor official, and (2) the absence of probable cause of the activities and financial management of a public hospital to which they had hospital in his faxes. rehberg alleges hodges's and paulk's decisions to scene); rowe, 279 f.3d at 1281 (no immunity for fabrication of jump rope); jones, 38 proceedings, a concern not implicated by the "felony complaints" filed to support an arrest hospital, hodges recused himself from prosecuting rehberg. burke was appointed 8 witness." id. at 1367 n.1. so mastroianni did not answer the question presented here, but jones advocate for the state." id. (quotation marks omitted); accord rowe v. city of fort malicious prosecution against hodges and paulk, in violation of rehberg's fourth constitutional rights (count 6), we are inclined to agree with the government that burns, 500 u.s. at 496, 111 s. ct. at 1944-45 (stating prosecutors do not enjoy john ley judicial proceedings or for trial, and which occur in the course of his role as an prosecution in count 7. rehberg cannot state a valid conspiracy claim by alleging prosecutor's role as an advocate of the state. see buckley, 509 u.s. at 277-78, against moore for a "complete lack of direct evidence." hartman, 547 u.s. at 254, after receiving unfavorable press coverage of his relationships with the supreme court [] adopt[ed] a strict separation between the prosecutor's role as hartman dictates the outcome of rehberg's retaliatory-prosecution claim in plus" test requires not only allegations stating a common law defamation claim, but paulk's retaliatory motive, and the absence of probable cause for prosecutor burke immunity because "[c]omments to the media have no functional tie to the judicial conspiracy conduct alleged in count 6; hodges and paulk received qualified reverse in part. rehberg's complaint does not allege defendant burke participated in the issuance of11 court granted absolute immunity to the prosecutor but denied qualified immunity to defendants' motions to dismiss and to enter judgment in favor of all defendants on f.3d at 1282. this functional approach looks to "the nature of the function the three indictments against rehberg were widely reported in the local at 1281. pointedly did not decide whether "simply conducting retaliatory investigation with the district court's denials of immunity as to rehberg's above four federal similarly in kalina v. fletcher, 522 u.s. at 120, 129-31, 118 s. ct. at 505, 509-10, finding a count 7. first, as to hodges, rehberg alleges hodges was in communication with in his individual capacity, n. 9, 126 s. ct. at 1705 n. 9 ("whether the expense or other adverse consequences 2 in information he voluntarily turns over to third parties." smith v. maryland, 442 process"). prosecution against hodges and paulk, for their alleged retaliation against rehberg 325, 333 (6th cir. 2001) (an individual sending an email loses "a legitimate permit through the back door what is prohibited through the front"); rowe, 279 purported to require appearance before a dougherty county grand jury. rehberg's 435, 443, 96 s. ct. 1619, 1624 (1976). nonprosecuting official acted in retaliation, and must also 29 tangible interest" (the plus). behrens, 422 f.3d at 1260 (quotation marks omitted). the city of albany, georgia, is in dougherty county.2 "so obviously wrong, in the light of pre-existing law, that only a plainly jury testimony against rehberg. 1108 [ ] (1983)." id. the mastroianni court then pointed out that while the at 1705 n.8. arrest; and (3) hodges and paulk invaded rehberg's privacy by illegally issuing rehberg does not allege he incurred any expenses in the investigation stage.18 immunity. rehberg has not appealed the district court's dismissal of count 9 against dougherty even if hodges and paulk knew paulk's testimony was false, paulk receives preparing and filing subpoenas during the investigation of rehberg. which addresses retaliatory-prosecution claims. u.s. marshals not absolutely immune for false testimony before a grand and petit jury); white v. [supreme] court specifically rejected the notion that defamation by a government as a distinct constitutional violation is not before us").18 defendant hodges, then the district attorney of dougherty county, claims. at oral argument, counsel for defendant paulk confirmed to the court that the state law because rehberg's allegations related to the subpoenas do not state a retaliatory animus of the non-prosecutor and the prosecutor's decision to prosecute. which to base yeomans' potential liability, we conclude that yeomans is entitled testimony to a grand jury. for the same reasons explained above, burke also is both a valid defamation claim (the stigma) and "the violation of some more prosecution without probable cause. id. at 274, 114 s. ct. at 813. a malicious in contrast, there is no allegation of any physical or expert evidence that the district attorney's office. kelly r. burke, in his 28 immunity. kalina, 522 u.s. at 121, 118 s. ct. at 505 (concluding prosecutor was prosecution claim, the plaintiff must show an absence of probable cause for the absent a valid right of privacy, rehberg cannot state a constitutional violation 19 attorney kenneth hodges, specially appointed prosecutor kelly burke, and chief prosecution, a plaintiff must establish a "but-for" causal connection between the here, rehberg lacks a reasonable expectation of privacy in the phone and ." u.s. const. amend iv. in moore's subsequent bivens action for retaliatory prosecution, the district 20 prosecution. it would be incongruous to treat the press conference and the 2727, 2738 (1982). a government agent is entitled to immunity unless his act is a person also loses a reasonable expectation of privacy in emails, at least show deprivation of a previously recognized fourteenth amendment property or voluntary relinquishment of the right to privacy in that information. rehberg does count 7. we recognize that plaintiff rehberg alleges defendant paulk was the sole 99 ("mr. paulk and mr. hodges instituted an investigation . . ."), 124 ("chilling his traditional common-law immunities for prosecutors apply to civil cases is criminal prosecution for perjury and not expanded civil claims paulk's retaliatory motive and actions "wrongfully influenced and instigated the hodges and paulk. for example, rehberg's complaint alleges hodges and paulk investigation claims in count 7. 500 u.s. at 496, 111 s. ct. at 1944-45; rowe, 279 f.3d at 1280; jones, 174 f.3d at grand jury testimony would result in depositions, emasculate the confidential established, we look to the precedent of the supreme court of the united states, amendment. however, rehberg's complaint does not allege that burke's media to bring charges. hartman, 547 u.s. at 265, 126 s. ct. at 1706. for example, a tort claim, such as rehberg's defamation allegation in count 8, does not jones, 174 f.3d at 1287 n.10. and the supreme court "consistently ha[s]8 briggs, 475 u.s. 335, 342, 106 s. ct. 1092, 1097 (1986) (quoting imbler, 424 u.s. investigating and prosecuting him. the prosecutor, who presented them to the grand jury. moore v. united states, 213 he continues by alleging, "[t]hese wrongful indictments will always be associated the actionable wrong." id. at 797-98. the seventh circuit concluded that, "a evidence linking him to dr. hotz's house or convinced another witness to testify falsely about their individual capacities, appeal the district court's denial of absolute and plaintiff-appellee, subscriber information provided to an internet provider is not protected by the [t]his case vividly illustrates the serious problems with rehberg's conspiracy allegations do not enlarge what he alleged previously a. the investigation prosecutorial decision to bring charges against mr. rehberg." hartman does not help us with this claim because the supreme court moore's criticism of and lobbying to the u.s. postal service, postal inspectors give rise to a 1983 due process claim unless there is an additional constitutional inspectors, the supreme court in hartman concluded that to bring a retaliatory- in his complaint. this opinion has already explained why hodges, burke, and (march 11, 2010) 17 violation of a constitutional right, the district court erred in denying qualified 92, 111 s. ct. 1934, 1942 (1991); kalina v. fletcher, 522 u.s. 118, 126, 118 s. ct. immunity applies to the alleged conspiracy decision in the investigative stage to [publish] investigate him, issue subpoenas, provide his information to paid civilians, and absolutely immune from liability for the decision to the only portion of count 7 that remains is rehberg's retaliatory iv. count 7 retaliatory prosecution petitioner did harbor some subjective expectation that the phone numbers he dialed the grand jury. the first indictment alleged rehberg assaulted dr. james hotz 547 u.s. at 262 n.9, 126 s. ct. at 1705 n.9, and neither has this court. without conspiracy to commit perjury based on a witness's allegedly false testimony at defamatory statements to the media which "damaged mr. rehberg's reputation."20 a second grand jury. paulk and dr. hotz appeared as witnesses. the grand jury defamation plaintiffs attempt to show some sort of special damage and out-of-pocket loss which may perform with impunity." jones, 174 f.3d at 1289 (citations omitted). a

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