23-265-cv Tillman v. Hoffman
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of November, two thousand twenty-three.
Present: PIERRE N. LEVAL, BARRINGTON D. PARKER, WILLIAM J. NARDINI, Circuit Judges. _____________________________________
GARRIEN F. TILLMAN,
Plaintiff-Appellant,
v. 23-265
DOREEN M. HOFFMAN, individually and in her capacity as an assistant district attorney for Niagara County, TROY EARP, individually and in his capacity as a detective for the Niagara Falls Police Department, SHAWN BOSI, individually and in his capacity as a detective for the Niagara Falls Police Department,
Defendants-Appellees. _____________________________________
For Plaintiff-Appellant: R. Anthony Rupp III, Chad A. Davenport, Rupp Pfalzgraf LLC, Buffalo, NY For Defendants-Appellees: Brian P. Crosby, Gibson, McAskill & Crosby, LLP, Buffalo, NY
Keith N. Bond, Walsh, Roberts & Grace, Buffalo, NY
Appeal from a judgment of the United States District Court for the Western District of New
York (John L. Sinatra, Jr., District Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Garrien Tillman appeals from a judgment of the United States District
Court for the Western District of New York (John L. Sinatra, Jr., District Judge), entered on
January 30, 2023, dismissing his 42 U.S.C. § 1983 lawsuit. Tillman claims that Defendants-
Appellees Doreen Hoffman, District Attorney for Niagara County, and Shawn Bosi and Troy Earp,
Niagara Country detectives (the “Defendants”), misrepresented certain identification evidence to
a New York grand jury, resulting in his arrest and indictment for charges based on a shooting in
Niagara Falls—charges that were later dismissed. Tillman alleges that the Defendants’ conduct
violated his Fourth, Fifth, Sixth, and Fourteenth Amendment rights. A magistrate judge
(Jeremiah J. McCarthy, Magistrate Judge) issued a report recommending dismissal of Tillman’s
complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and because
Defendants were entitled to absolute or qualified immunity. Tillman objected to the report and
recommendation. After considering arguments from the parties, the district court adopted the
magistrate judge’s report and recommendation and dismissed the complaint. Tillman now
appeals. We assume the parties’ familiarity with the case.
2 We review a district court’s judgment granting a motion to dismiss de novo. Krys v.
Pigott, 749 F.3d 117, 128 (2d Cir. 2014). In reviewing the sufficiency of a complaint, “we accept
only its factual allegations, and the reasonable inferences that can be drawn therefrom, as true.” 1
Id. “Thus, the plaintiff is entitled to all reasonable inferences from the facts alleged, not only
those that support his claim, but also those that defeat the immunity defense.” McKenna v.
Wright, 386 F.3d 432, 436 (2d Cir. 2004).
I. Defendant Hoffman
The district court did not err in dismissing Tillman’s claims against Hoffman on the
grounds of absolute immunity, because her actions and statements were directly related to her
prosecutorial duties. We have long held that “a district attorney is absolutely immune from civil
liability for initiating a prosecution and presenting the case at trial. . . . [and] is also immune for
conduct in preparing for those functions.” Hill v. City of New York, 45 F.3d 653, 661 (2d Cir.
1995). In determining whether absolute immunity attaches to a defendant’s conduct, we apply a
functional approach, as the liability shield covers virtually all acts that are associated with a
prosecutor’s function as an advocate. See Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994).
The complaint alleged that Hoffman met with Earp and Bosi before they testified in a grand
jury that was considering whether to indict Tillman; that she learned during this meeting that Earp
and Bosi were unable to personally identify Tillman as the shooter; and that she nevertheless
questioned Earp and Bosi before the grand jury in a way that left the mistaken impression that they
1 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, and citations are omitted. 3 were in fact able to personally identify him. The complaint also alleges that Hoffman knowingly
allowed Bosi to present false evidence that an eyewitness had identified Tillman as one of the
shooters, during an interrogation. Tillman argues that Hoffman acted only in an “investigative
capacity” in engaging in such conduct, because neither she nor the detectives knew who the real
shooters were, and therefore were acting “during the preliminary investigation of an unsolved
crime”—conduct that is protected only by the lesser protections of qualified (not absolute)
immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 275 (1993). But the immunity question is not,
as Tillman would have it, driven by whether the crime was truly “unsolved.” Instead, the Supreme
Court has instructed courts to consider what function the prosecutor was fulfilling through the
challenged conduct. As the district court recognized, Hoffman’s challenged actions involved
questioning two witnesses before a grand jury not as an investigative matter, but rather to seek an
indictment against Tillman. In other words, Hoffman was exercising core prosecutorial functions
as an advocate by seeking to “initiat[e] a prosecution” through judicial proceedings (here, a grand
jury hearing), and her conduct in that regard was therefore shielded by absolute immunity. See
Buckley, 509 U.S. at 270 (citing Imbler v. Pachtman, 424 U.S. 409, 431 (1976)). It is likewise
clear that Hoffman’s ancillary meeting with those witnesses to ready them for their grand jury
testimony falls within the scope of “conduct in preparing for” the initiation of a prosecution, which
also falls within the scope of absolute immunity. Hill, 45 F.3d at 661.
Tillman nevertheless contends that Hoffman is not entitled to absolute immunity because
she acted in the “clear absence of all jurisdiction,” Anilao v.
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23-265-cv Tillman v. Hoffman
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of November, two thousand twenty-three.
Present: PIERRE N. LEVAL, BARRINGTON D. PARKER, WILLIAM J. NARDINI, Circuit Judges. _____________________________________
GARRIEN F. TILLMAN,
Plaintiff-Appellant,
v. 23-265
DOREEN M. HOFFMAN, individually and in her capacity as an assistant district attorney for Niagara County, TROY EARP, individually and in his capacity as a detective for the Niagara Falls Police Department, SHAWN BOSI, individually and in his capacity as a detective for the Niagara Falls Police Department,
Defendants-Appellees. _____________________________________
For Plaintiff-Appellant: R. Anthony Rupp III, Chad A. Davenport, Rupp Pfalzgraf LLC, Buffalo, NY For Defendants-Appellees: Brian P. Crosby, Gibson, McAskill & Crosby, LLP, Buffalo, NY
Keith N. Bond, Walsh, Roberts & Grace, Buffalo, NY
Appeal from a judgment of the United States District Court for the Western District of New
York (John L. Sinatra, Jr., District Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Garrien Tillman appeals from a judgment of the United States District
Court for the Western District of New York (John L. Sinatra, Jr., District Judge), entered on
January 30, 2023, dismissing his 42 U.S.C. § 1983 lawsuit. Tillman claims that Defendants-
Appellees Doreen Hoffman, District Attorney for Niagara County, and Shawn Bosi and Troy Earp,
Niagara Country detectives (the “Defendants”), misrepresented certain identification evidence to
a New York grand jury, resulting in his arrest and indictment for charges based on a shooting in
Niagara Falls—charges that were later dismissed. Tillman alleges that the Defendants’ conduct
violated his Fourth, Fifth, Sixth, and Fourteenth Amendment rights. A magistrate judge
(Jeremiah J. McCarthy, Magistrate Judge) issued a report recommending dismissal of Tillman’s
complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and because
Defendants were entitled to absolute or qualified immunity. Tillman objected to the report and
recommendation. After considering arguments from the parties, the district court adopted the
magistrate judge’s report and recommendation and dismissed the complaint. Tillman now
appeals. We assume the parties’ familiarity with the case.
2 We review a district court’s judgment granting a motion to dismiss de novo. Krys v.
Pigott, 749 F.3d 117, 128 (2d Cir. 2014). In reviewing the sufficiency of a complaint, “we accept
only its factual allegations, and the reasonable inferences that can be drawn therefrom, as true.” 1
Id. “Thus, the plaintiff is entitled to all reasonable inferences from the facts alleged, not only
those that support his claim, but also those that defeat the immunity defense.” McKenna v.
Wright, 386 F.3d 432, 436 (2d Cir. 2004).
I. Defendant Hoffman
The district court did not err in dismissing Tillman’s claims against Hoffman on the
grounds of absolute immunity, because her actions and statements were directly related to her
prosecutorial duties. We have long held that “a district attorney is absolutely immune from civil
liability for initiating a prosecution and presenting the case at trial. . . . [and] is also immune for
conduct in preparing for those functions.” Hill v. City of New York, 45 F.3d 653, 661 (2d Cir.
1995). In determining whether absolute immunity attaches to a defendant’s conduct, we apply a
functional approach, as the liability shield covers virtually all acts that are associated with a
prosecutor’s function as an advocate. See Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994).
The complaint alleged that Hoffman met with Earp and Bosi before they testified in a grand
jury that was considering whether to indict Tillman; that she learned during this meeting that Earp
and Bosi were unable to personally identify Tillman as the shooter; and that she nevertheless
questioned Earp and Bosi before the grand jury in a way that left the mistaken impression that they
1 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, and citations are omitted. 3 were in fact able to personally identify him. The complaint also alleges that Hoffman knowingly
allowed Bosi to present false evidence that an eyewitness had identified Tillman as one of the
shooters, during an interrogation. Tillman argues that Hoffman acted only in an “investigative
capacity” in engaging in such conduct, because neither she nor the detectives knew who the real
shooters were, and therefore were acting “during the preliminary investigation of an unsolved
crime”—conduct that is protected only by the lesser protections of qualified (not absolute)
immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 275 (1993). But the immunity question is not,
as Tillman would have it, driven by whether the crime was truly “unsolved.” Instead, the Supreme
Court has instructed courts to consider what function the prosecutor was fulfilling through the
challenged conduct. As the district court recognized, Hoffman’s challenged actions involved
questioning two witnesses before a grand jury not as an investigative matter, but rather to seek an
indictment against Tillman. In other words, Hoffman was exercising core prosecutorial functions
as an advocate by seeking to “initiat[e] a prosecution” through judicial proceedings (here, a grand
jury hearing), and her conduct in that regard was therefore shielded by absolute immunity. See
Buckley, 509 U.S. at 270 (citing Imbler v. Pachtman, 424 U.S. 409, 431 (1976)). It is likewise
clear that Hoffman’s ancillary meeting with those witnesses to ready them for their grand jury
testimony falls within the scope of “conduct in preparing for” the initiation of a prosecution, which
also falls within the scope of absolute immunity. Hill, 45 F.3d at 661.
Tillman nevertheless contends that Hoffman is not entitled to absolute immunity because
she acted in the “clear absence of all jurisdiction,” Anilao v. Spota, 27 F.4th 855, 864 (2d Cir.
2022). He argues that she knew that the grand jury indictment was not supported by legally
4 sufficient evidence in the form of non-hearsay testimony identifying Tillman as the shooter, and
that under New York law the absence of such evidence rendered the indictment invalid and
stripped the state court (and therefore the prosecutor) of jurisdiction to proceed with the
prosecution. Tillman argues that such a conclusion is dictated by the New York Court of Appeals’
decision in People v. Pelchat, 62 N.Y.2d 97 (1984). Tillman’s reliance on Pelchat is unavailing.
In that case, the issue was whether a defendant could raise a post-plea challenge to his indictment
based on a claim that it had been obtained with evidence that the prosecutor knew to be false. Id.
at 99. As the district court here recognized, however, Tillman received precisely the relief given
in Pelchat: dismissal of his indictment by the state court. Nothing in Pelchat suggests that, before
such dismissal, either the state court or – by extension – the state prosecutor acted in absence of
jurisdiction. Quite the contrary. Because Tillman challenges only actions by Hoffman that
preceded the final adjudication of his case, his claims are barred by absolute immunity. See Anilao
v. Spota, 27 F.4th 855, 866 (2d Cir. 2022) (holding that absolute immunity applies “as long as a
prosecutor acts with colorable authority. . . regardless of motivation”).
II. Defendants Bosi and Earp
The district court also correctly dismissed the claims against Bosi and Earp because they
are entitled to qualified immunity. “A government official sued in his individual capacity is
entitled to qualified immunity (1) if the conduct attributed to him was not prohibited by federal
law; or (2) where that conduct was so prohibited, if the plaintiff's right not to be subjected to such
conduct by the defendant was not clearly established at the time it occurred; or (3) if the
defendant’s action was objectively legally reasonable.” Manganiello v. City of New York, 612
5 F.3d 149, 164 (2d Cir. 2010) (cleaned up). After de novo review of the record, we conclude that
it was objectively legally reasonable for Bosi and Earp to believe that their testimony to the grand
jury did not violate any of Tillman’s clearly established rights. The complaint does not allege any
facts to support the assertion that, during their testimony, Bosi or Earp misrepresented evidence
(for example, that they had personally identified Tillman as the shooter) or that they otherwise
gave false or misleading testimony. 2 Tillman’s primary complaint relates to how they were
questioned before the grand jury. Bosi and Earp, however, neither directed the line of questioning
nor the strategy behind the presentment of their grand jury testimony, and both presented truthful
testimony.
We have considered Tillman’s remaining arguments and find them to be unpersuasive.
* * *
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
2 To the extent the complaint alleges that Bosi falsely testified that an eyewitness had told him that Tillman was one of the shooters, a video of Bosi’s interrogation of the eyewitness—which Tillman incorporated into his complaint—directly contradicts that assertion, by showing the eyewitness identifying Tillman as a shooter. See Fed. R. Civ. P. l0(c); see also Bogie v. Rosenberg, 705 F.3d 603, 608-09 (7th Cir. 2013). 6