NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 19-3339 ____________

PAUL KAMIENSKI, Appellant

v.

MARLENE LYNCH FORD; THOMAS F. KELAHER; JAMES W. HOLZAPFEL; RONALD F. DELIGNY; JOHN MERCUN; SAMUEL J. MARZARELLA; E. DAVID MILLARD; JAMES A. CHURCHILL; DANIEL MAHONEY; JEFFREY THOMPSON; COUNTY OF OCEAN ____________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 3-11-cv-03056) District Judge: Honorable Peter G. Sheridan ____________

No. 19-3406 ____________

PAUL KAMIENSKI;

v.

MARLENE LYNCH FORD; THOMAS F. KELAHER; JAMES W. HOLZAPFEL; RONALD DELIGNY; JOHN MERCUN; SAMUEL J. MARZARELLA; E. DAVID MILLARD; JAMES A. CHURCHILL; DANIEL MAHONEY; JEFFREY P. THOMPSON; COUNTY OF OCEAN

(D.N.J. No. 3-11-cv-03056) JULIA PALMA, Executrix of the Estate of Anthony Alongi, Deceased

v.

MARLENE L. FORD; THOMAS F. KELAHER; JAMES W. HOLZAPFEL; RONALD F. DELIGNY; JOHN MERCUN; E. DAVID MILLARD; JAMES A. CHURCHILL; DANIEL MAHONEY; JEFFREY THOMPSON; COUNTY OF OCEAN; SAMUEL J. MARZARELLA

(D.N.J. No. 3-11-cv-06243)

Julia Palma, Executrix of the Estate of Anthony Alongi, Deceased, Appellant ____________

On Appeal from the United States District Court for the District of New Jersey (D.C. Nos. 3-11-cv-03056; 3-11-cv-06243) District Judge: Honorable Peter G. Sheridan ____________

Argued on September 9, 2020

Before: CHAGARES, HARDIMAN, and MATEY, Circuit Judges.

(Filed: February 12, 2021)

Timothy J. McInnis [Argued] Richard F. Bernstein McInnis Law 521 Fifth Avenue, 17th Floor New York, New York 10175-0038

Counsel for Appellant Paul Kamienski

2 Steven J. Jozwiak [Argued] 601 Longwood Avenue, Suite 300 Cherry Hill, NJ 08002

Counsel for Appellant Julia Palma, Executrix of the Estate of Anthony Alongi, Deceased

Robert J. McGuire [Argued] Melissa H. Raksa Office of Attorney General of New Jersey Division of Law 25 Market Street Hughes Justice Complex 1st Floor, West Wing Trenton, NJ 08625

Counsel for Appellees Marlene Lynch Ford, Thomas F. Kelaher, James W. Holzapfel, Ronald F. DeLigny, John Mercun, Samuel J. Marzarella, E. David Millard, James A. Churchill, and Daniel T. Mahony

___________

OPINION * ____________

HARDIMAN, Circuit Judge.

In 1983, a drug deal turned into a double murder. Paul Kamienski and Anthony

Alongi were convicted of that murder, but they secured habeas relief approximately thirty

years later. After their release, they sued detectives and prosecutors who worked on their

case. In one state court suit, Kamienski obtained monetary relief for mistaken

imprisonment under New Jersey law. In this federal action, they seek damages under

to redress alleged due process injuries resulting from misconduct by

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 3 officials in the Ocean County, New Jersey Prosecutor’s Office. Exercising its federal

question jurisdiction, the District Court granted summary judgment in favor of

Defendants, 1 holding they were entitled to either qualified or absolute immunity.

Kamienski and Alongi argue summary judgment was improper because

Defendants 2 were not immune. For the reasons that follow, we will affirm.

I

In the District Court, Kamienski alleged Detectives Daniel Mahony and James

Churchill violated his due process rights when they withheld another detective’s

handwritten notes and typewritten report. Those documents indicated that state witness

Arthur Lehman was a confidential informant and included statements by Lehman that

contradicted his trial testimony. The District Court held Mahony and Churchill immune

from suit. We agree.

A

Initially, we “determine the precise claim” that Kamienski made against Mahony

and Churchill regarding their roles in the proceedings. See Burns v. Reed,

(1991). Kamienski contends Mahony and Churchill violated his due process rights

1 After Alongi’s death in 2014, the District Court substituted Julia Palma, Executrix of his Estate, as party plaintiff for Alongi. We refer simply to Alongi. See Alongi v. Ford, et al., E.D. Pa. Civ. Act. No. 3:11-cv-06243. Because Alongi incorporates Kamienski’s appellate and reply briefs by reference, we refer to Kamienski’s arguments, but our analysis applies equally to Alongi’s claims. 2 On appeal, Kamienski and Alongi challenge the summary judgment only as to Defendants Daniel Mahony, James Churchill, Samuel Marzarella, Marlene Lynch Ford, and Ronald DeLigny. 4 under Brady v. Maryland,

(1963), by failing to disclose Lehman’s status as a

confidential informant and failing to provide the notes and report. Kamienski makes two

arguments against immunity for this claim. Both theories fall short.

1

First, he argues a jury could find the detectives’ failure to produce the notes and

report of Lehman’s interview and failure to disclose Lehman’s status as an informant

“rise to the level of a [knowing] due process violation” because “Mahony was in charge

of producing pretrial discovery to Kamienski’s attorney.” Kamienski Br. 56 & n.18.

Under this theory, the detectives had to produce the evidence themselves and are

therefore liable for violating Brady.

If Mahony and Churchill were personally responsible for disclosing Lehman’s

status during discovery, they are entitled to absolute immunity. The “immunity analysis

rests on functional categories, not on the status of the defendant,” Briscoe v. LaHue,

(1983), and “[a]bsolute immunity attaches to all actions performed in a

‘quasi-judicial’ role.” Kulwicki v. Dawson,

(3d Cir. 1992) (citation

omitted). The disclosure of evidence during discovery is “intimately associated with the

judicial phase of the criminal process.” See Fogle v. Sokol,

, 159–60 (3d Cir.

2020) (citation omitted). So under this view of the detectives’ role, Mahony and

Churchill are entitled to absolute immunity.

Nor does the detectives’ status as police officers deprive them of absolute

immunity. Police officers, including detectives, are not categorically denied absolute

5 immunity; as with all other jobs, immunity depends on function. Briscoe,

.

2

Under Kamienski’s second theory, the detectives are not entitled to absolute

immunity because they had a duty to disclose the notes and reports to the trial prosecutor

and therefore were not “intimately associated with the judicial phase of the criminal

process.” See Fogle, 957 F.3d at 160. Kamienski adds there was a “sufficient nexus

between [the detectives’] investigative activities and Lehman’s . . . testimony concerning

his informant status . . . that they are not entitled . . . to qualified immunity.” Kamienski

Br. 56 & n.19 (distinguishing Gibson v. Superintendent of N.J. Dep’t of L. & Pub. Safety,

, 442–44 (3d Cir. 2005), overruled on other grounds by Dique v. N.J. State

Police,

(3d Cir. 2010)). Applying this second theory, the detectives are

entitled to qualified immunity.

Whatever we might make of the allegations’ merits, under the qualified immunity

framework—see Yarris v. Cnty. of Delaware,

, 140–41 (3d Cir. 2006)—

withholding evidence did not violate a clearly established right at the time of the criminal

trial in this case. In Gibson, the plaintiff alleged that police officers affirmatively

concealed material evidence from the prosecutor. 411 F.3d at 443–44. But it was not

clearly established at the time of the 1994 trial that officers had a duty under Brady to

disclose exculpatory information to prosecutors, so they were entitled to qualified

6 immunity. Id. And so too here. Mahony and Churchill are entitled to qualified immunity

for their conduct at the time of the 1988 trial. See id.

Kamienski asks us to disregard Gibson because Mahony and Churchill were

personally responsible for the disclosure to Kamienski—unlike the officers in Gibson,

who were only under a duty to disclose the evidence to the prosecutor. But this request is

self-defeating: if Mahony and Churchill had duties arising from the litigation, they would

be intimately associated with the judicial phase of the criminal process and therefore

entitled to absolute immunity. See supra Section I-A-1.

In sum, Kamienski cannot have it both ways. Either the detectives were

responsible for complying with Brady by disclosing evidence to his defense team—in

which case they were acting in a quasi-judicial role and entitled to absolute immunity—

or they were investigators entitled to qualified immunity because their duty to disclose

Brady material to the prosecutor was not clearly established at the time of the 1988 trial.

B

Kamienski also accuses Mahony of knowingly suborning perjury and failing to

disclose promises made to a material witness at the criminal trial in violation of his due

process rights under Giglio v. United States,

(1972). He did not include this

Giglio claim in his pleadings, but he moved the District Court to supplement the record

with related testimony well after the summary judgment filings had closed. The District

Court denied this motion and explained that the motion was brought too late on the basis

that Kamienski failed to adduce this evidence within the four-year discovery window and

7 summary judgment had been pending for quite a while when the motion was filed. The

District Court also denied Kamienski’s previous motions to supplement the record with

two New Jersey State Trooper declarations and several New Jersey State Police reports

related to Lehman’s identity and testimony.

Kamienski argues the District Court abused its discretion by not allowing this

evidence to supplement the summary judgment record. As to the evidence of promises

and suborned perjury by Mahony, Kamienski argues it was an abuse of discretion

because he offered the evidence soon after an extended deadline expired on unrelated

limited discovery matters. He also claims the District Court abused its discretion because

he acted diligently when his counsel earlier contacted a witness to obtain information but

had been rebuffed. Regarding the evidence concerning Lehman, Kamienski contends the

District Court abused its discretion because the evidence was relevant and would not

have unduly prejudiced Defendants.

We perceive no abuse of discretion, see Duha v. Agrium, Inc.,

, 881–

82 (6th Cir. 2006), in the District Court’s decisions denying the motions to supplement.

Kamienski had years of discovery to subpoena any of the key witnesses. He chose not to

do so, instead attempting to supplement the record months after the motion for summary

judgment was filed. Given his ample opportunity, the Court did not abuse its discretion

by denying Kamienski’s belated motions to supplement the record.

8 II

Two attorneys represented New Jersey during the criminal litigation. David

Millard 3 prosecuted the original jury trial against Kamienski and Alongi; Samuel

Marzarella handled the appellate and habeas proceedings. Kamienski alleges Marzarella

made misrepresentations to courts, and he argues that absolute immunity cannot protect

Marzarella because he was not trial counsel and his conduct was egregious. His

arguments are unavailing.

A

Kamienski alleges Marzarella filed inaccurate briefs and made misleading

statements at oral argument, and he argues absolute immunity cannot apply because

Marzarella was not trial counsel. We disagree.

“Absolute immunity is designed to free the judicial process from the harassment

and intimidation associated with litigation.” Burns,

(emphasis omitted).

Kamienski targets actions at the core of the advocacy that absolute immunity seeks to

shield from liability. See

Because Marzarella’s conduct was “intimately associated

with the judicial phase of the criminal process” while “presenting the State’s case,” see

at 486 (quoting Imbler v. Pachtman,

(1976)), he is immune.

3 Kamienski also claimed Millard violated his due process rights by endorsing Lehman’s trustworthiness during his closing argument, and the District Court held Millard was immune. Kamienski and Alongi waived this issue on appeal. See Kamienski Reply Br. 12; Palma Reply Ltr. 9 Kamienski urges us to parse the caselaw differently and limit absolute immunity to

protect only the actions of trial counsel, but the great weight of authority dissuades us

from accepting his invitation. In Yarris, we explained that “‘[a]bsolute immunity applies

to the adversarial acts of prosecutors during post-conviction proceedings . . . where the

prosecutor is personally involved . . . and continues his role as an advocate,’ but that

‘where the role as advocate has not yet begun . . . or where it has concluded, absolute

immunity does not apply.’” 465 F.3d at 137 (alteration and omissions in original)

(quoting Spurlock v. Thompson,

(6th Cir. 2003)). Kamienski argues

this language establishes an exception to absolute immunity such that it does not apply to

appellate and habeas counsel who were not involved at trial.

In Yarris, we determined the prosecutors were not entitled to absolute immunity

because their conduct was not closely related to the judicial proceedings. Id. at 138.

There, they were evidentiary custodians—“administrators rather than officers of the

court.” Id. (cleaned up). And caselaw from our sister courts weighs heavily in favor of

recognizing that absolute immunity protects lawyers representing the State in direct

appeal and habeas proceedings. See, e.g., Warney v. Monroe Cnty.,

(2d

Cir. 2009); Spurlock,

; Lucien v. Preiner,

, 1167–68 (7th

Cir. 1992) (executive clemency proceedings); Johnson v. Kegans,

(5th

Cir. 1989), cert. denied,

(1989) (parole proceedings); Joseph v. Patterson,

(6th Cir. 1986), cert. denied,

(1987) (direct appeal);

Henzel v. Gerstein,

(5th Cir. 1979) (direct appeal); Bruce v. Wade,

10

(5th Cir. 1976) (habeas proceedings). Because the allegations concern

Marzarella’s conduct as the state’s advocate in court, absolute immunity shields him.

B

Kamienski responds further that Marzarella’s misconduct was extreme and argues

the “‘most egregious’ official misconduct” is not entitled to absolute immunity, relying

on Rosales-Mireles v. United States,

(2018), and Haberle v.

Troxell,

(3d Cir. 2018). Kamienski Br. 65. Haberle addressed whether

a police officer’s conduct amounted to a “state-created danger.” 885 F.3d at 176–77.

State-created-danger claims require culpable conduct that shocks the conscience, and that

test is met only by the most egregious conduct.

In Rosales-Mireles, the Supreme

Court explained the Olano forfeiture test’s fourth prong.

. The Court’s

plain-error discussion has no bearing on the absolute immunity framework.

Neither

case established any exception to absolute immunity, so Kamienski’s argument urging an

exception is unpersuasive.

III

Kamienski contacted the prosecutor’s office seeking review of Marzarella’s

litigation conduct. He argues that the silence by Marzarella’s supervisors, Defendants

Marlene Ford and Ronald DeLigny, in response to these requests was egregious behavior.

He also argues that Van de Kamp v. Goldstein,

(2009), does not shield Ford

and DeLigny from liability because their review would not directly impact the litigation.

11 Kamienski misapplies Goldstein. As the Second Circuit explained in Warney v.

Monroe County, overseeing litigation-related functions—like the ones here—is protected

by absolute immunity. See

(citing Goldstein). The allegations of failure

to supervise all relate back to Marzarella’s litigation conduct. Just as the administrative

acts in Goldstein and Warney were “integral to an advocacy function,” we conclude that

the prosecutors’ actions here “were also integral to the overarching advocacy function”

because they “required legal knowledge and the exercise of related discretion.” See

(cleaned up) (quoting Goldstein,

).

* * *

Kamienski and Alongi allege serious wrongdoing. But their allegations are

stymied by absolute or qualified immunity, so we must affirm the District Court’s

summary judgment.

12