United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-3213
                         ___________________________

                                    David J. Sample

                         lllllllllllllllllllll Plaintiff - Appellant

                                             v.

   City of Woodbury; Mark J. Vierling; Sean P. Stokes; Rebecca Christensen;
   Joseph Van Thomme; Eckberg, Lammers, Briggs, Wolff & Vierling, PLLP

                       lllllllllllllllllllll Defendants - Appellees
                                        ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                               Submitted: June 15, 2016
                               Filed: September 6, 2016
                                    ____________

Before MURPHY and SHEPHERD, Circuit Judges, and PERRY1, District Judge.
                         ____________

PERRY, District Judge.

     David J. Sample brought this lawsuit under 42 U.S.C. § 1983 against the City
of Woodbury (“the City”) and City prosecutors. Sample alleged that the City’s failure


      1
        The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri, sitting by designation.
to develop a conflict-of-interest policy led to a violation of his constitutional rights
when the prosecutors filed a criminal complaint against him while simultaneously
representing the victim of his alleged crime in separate civil actions. The prosecutors
– Mark J. Vierling, Sean P. Stokes, Rebecca Christensen, and Joseph Van Thomme
– are private attorneys from the law firm of Eckberg, Lammers, Briggs, Wolff &
Vierling, PLLP (together, “the Attorneys”). Under contract with the City, the Eckberg
law firm and its lawyers prosecute certain criminal matters on the City’s behalf.

       The district court granted the City’s and the Attorneys’ separate motions to
dismiss under Federal Rule of Civil Procedure 12(b)(6), finding that absolute
immunity barred Sample’s federal constitutional claims as well as various of his
supplemental state law claims. The district court dismissed a remaining state law
claim under Minnesota’s doctrine of statutory discretionary immunity. Sample
appeals the district court’s decision as it relates to absolute immunity. We affirm in
part, reverse in part, and remand.

                                          I.

      Sample’s complaint alleges the following facts, which we must accept as true
when analyzing whether the district court correctly ruled the defendants’ Rule
12(b)(6) motions to dismiss. Gorog v. Best Buy Co., 

, 792 (8th Cir.
2014); Hafley v. Lohman, 

, 266 (8th Cir. 1996).

      On August 29, 2013, the Woodbury Police Department responded to a 911 call
at Sample’s residence regarding an incident in which a woman, J.D., claimed that
Sample had assaulted her. Attorney Vierling of the Eckberg law firm obtained copies
of the police reports regarding the incident and, on September 26, attorney
Christiansen of the Eckberg law firm filed a criminal complaint against Sample on
behalf of the City. At the time the criminal complaint was filed, Vierling and the
Eckberg law firm represented J.D. in a domestic civil action in Hennepin County

                                          -2-
District Court. The Eckberg law firm later asked another firm to prosecute the criminal
case against Sample, citing that it had a conflict of interest.

      Sample filed a motion to dismiss the City’s charges against him. In August
2014, the state court granted Sample’s motion and dismissed the criminal complaint,
finding that the Eckberg law firm engaged in prosecutorial misconduct when it
brought criminal charges against Sample on behalf of the City while simultaneously
representing the alleged victim in domestic civil actions, including in an action
seeking an order for protection against Sample. The state court found that this
misconduct violated Sample’s constitutional right to due process.

       Sample then brought this section 1983 action in federal district court, alleging
that the Attorneys’ filing of criminal charges against him while acting under a conflict
of interest, and the City’s failure to have a conflict policy in place, violated his
constitutional rights. Sample also raised supplemental state law claims against all
defendants for abuse of process, malicious prosecution, and negligent failure to train
and to establish a conflicts policy. The City and the Attorneys filed separate Rule
12(b)(6) motions to dismiss the complaint for failure to state a claim, which the
district court granted after a hearing. Specifically, the district court held that the
Attorneys enjoyed absolute prosecutorial immunity as to Sample’s section 1983 claim
as well as to his claims of abuse of process, malicious prosecution, and negligent
failure to establish a conflicts policy; and that the City enjoyed derivative absolute
immunity on the claims. The district court further found that the doctrine of statutory
discretionary immunity under Minnesota law barred Sample’s remaining claim of
negligent failure to train. The district court thus dismissed Sample’s complaint in its
entirety and entered final judgment thereon.




                                          -3-
       Sample now appeals the district court’s dismissal of his complaint, arguing that
the district court erred in finding absolute immunity to bar his claims.2 We review de
novo the district court’s grant of a Rule 12(b)(6) motion to dismiss. 

.

                                          II.

      “[A]bsolute immunity defeats a suit at the outset, so long as the official’s
actions were within the scope of the immunity.” Imbler v. Pachtman, 

,
419 n.13 (1975). Where an official’s challenged actions are protected by absolute
immunity, dismissal under Rule 12(b)(6) is appropriate. Patterson v. Von Riesen, 

, 1237 (8th Cir. 1993).

       Prosecutors enjoy absolute immunity in their review of and decisions to charge
a violation of the law. 

, 431. Absolute immunity protects
prosecutors against claims arising from their initiation of a prosecution and presenting
a criminal case “insofar as that conduct is ‘intimately associated with the judicial
phase of the criminal process.’” Burns v. Reed, 

, 486 (1991) (quoting

). Because the immunity depends upon the functional nature
of the prosecutor’s activities, allegations of improper motive in the performance of
prosecutorial functions will not defeat its protection. Myers v. Morris, 

,
1446 (8th Cir. 1987), abrogated on other grounds, Burns v. Reed, 

(1991). See also Reasonover v. St. Louis Cnty., 

, 580 (8th Cir. 2006).




      2
        Sample does not challenge the district court’s conclusion that his claim of
negligent failure to train is barred by statutory discretionary immunity. Sample has
thus waived any challenge to the district court’s finding in this regard. XO Mo., Inc.
v. City of Maryland Heights, 

, 1025 (8th Cir. 2004) (by failing to raise
issue on appeal, party waived challenge to court’s determination on issue).

                                          -4-
       Sample does not challenge the functional nature of a prosecutor’s action in
filing a criminal complaint and acknowledges that absolute immunity protects this
conduct. He argues, however, that the Attorneys’ filing of the complaint here fell
outside the scope of their prosecutorial duties because it was done only to advance the
claims of their client, J.D., in other civil actions. Absolute immunity, however, “is not
defeated by allegations of malice, vindictiveness, or self-interest,” Reasonover,447
F.3d at 580, and applies even if the prosecutor’s steps to initiate a prosecution are
patently improper. Saterdalen v. Spencer, 

, 842 (8th Cir. 2013).
Allegations of unethical conduct and improper motive in the performance of
prosecutorial functions do not defeat the protection of absolute immunity. 

.

       There is no question that the Attorneys’ filing of criminal charges against
Sample was an action intimately associated with the judicial phase of the criminal
process. See 

; Malley v. Briggs, 

, 342-43 (1986).
Whatever their motives may have been – including the advancement of another
client’s interests – the Attorneys’ conduct in filing the charges is protected by absolute
immunity. See Cleavinger v. Saxner, 

, 200-01 (1985) (application of
absolute immunity not affected by motives with which protected acts are performed).
The district court properly dismissed these claims against the Attorneys.

       The district court likewise properly found that absolute immunity barred
Sample’s section 1983 and negligence claims to the extent they alleged that the
Attorneys wrongfully failed to develop a conflicts policy. While the claims on their
face appear to allege a defect in an administrative duty, which would remove the
protection of absolute immunity, the district court properly found that the
development of a conflicts policy and the determination as to what constitutes a
conflict of interest would necessarily require legal knowledge and the exercise of
related discretion, features to which the doctrine of absolute immunity applies. Van
de Kamp v. Goldstein, 

, 344 (2009).

                                           -5-
      Because the Attorneys enjoyed absolute prosecutorial immunity from suit on
Sample’s claims, the district court did not err in dismissing Sample’s complaint
against the Attorneys under Rule 12(b)(6) for failure to state a claim.

                                         III.

      Unlike government officials, municipalities do not enjoy absolute immunity
from suit under section 1983. Leatherman v. Tarrant Cnty. Narcotics Intelligence &
Coordination Unit, 

(1993). Accordingly, the district court erred in
holding that the City was absolutely immune from suit on Sample’s claims.

       In finding absolute immunity to bar Sample’s claims, the district court did not
distinguish the claims against the Attorneys from those against the City. It simply
held all claims were barred by the doctrine. In Leatherman, however, the Supreme
Court made it “quite clear that, unlike various government officials, municipalities do
not enjoy immunity from suit – either absolute or qualified – under § 

. The Supreme Court based this clear statement on previous decisions,
including Owen v. City of Independence, Mo., 

(1980), where it reasoned:

             How “uniquely amiss” it would be . . . if the government itself —
      “the social organ to which all in our society look for the promotion of
      liberty, justice, fair and equal treatment, and the setting of worthy norms
      and goals for social conduct” — were permitted to disavow liability for
      the injury it has begotten. A damages remedy against the offending
      party is a vital component of any scheme for vindicating cherished
      constitutional guarantees, and the importance of assuring its efficacy is
      only accentuated when the wrongdoer is the institution that has been
      established to protect the very rights it has transgressed. Yet owing to
      the qualified immunity enjoyed by most government officials, many
      victims of municipal malfeasance would be left remediless if the city
      were also allowed to assert a good-faith defense. Unless countervailing
      considerations counsel otherwise, the injustice of such a result should not
      be tolerated.

                                         -6-


(internal citations and footnote omitted). Although the City laudably argues
that extending absolute immunity to municipalities would further the underlying
policy governing immunity protections to prosecutors, we cannot ignore the Supreme
Court’s explicit holding in Leatherman that absolute immunity does not apply to
municipalities. Nor can we ignore its reasoning in Owen.

      Municipalities already enjoy some protection in that they can only be liable
under section 1983 if municipal policy or custom caused the unconstitutional injury.
See 

(citing Monell v. New York City Dep’t of Soc. Servs.,

(1978)). Extending immunity protections to municipalities as the City
proposes would leave innocent persons harmed by the abuse of governmental
authority without a remedy for compensation for their injury. See 

, 657.

         Simply stated, absolute immunity does not bar Sample’s claims against the
City.3

         3
       Our decision today addresses only the doctrine of absolute immunity as applied
to municipalities, because that is the only basis upon which the district court
determined Sample’s claims against the City to be barred. We do not express an
opinion on whether, or the extent to which, respondeat superior liability plays a role
in Sample’s section 1983 claim challenging the City’s policy, or lack of policy; or
whether additional bases exist for dismissal of Sample’s supplemental state law
claims. See 

(freedom from respondeat superior liability
distinguished from immunity from suit).

       Nor does today’s decision conflict with Patterson v. Von Riesen, 

(8th Cir. 1993), where a panel of this court found the dismissal of claims against a
county to be proper where its prosecutors were absolutely immune from suit. 

In Patterson the court relied on a respondeat superior theory to find the county
not liable. 

n.2. As stated in Leatherman and as noted above, immunity
from suit and freedom from respondeat superior liability are separate doctrines.

                                         -7-
     We therefore reverse the district court’s finding that the City is absolutely
immune from suit on Sample’s section 1983 and supplemental state law claims and
remand the matter for further proceedings on Sample’s claims against the City.

                                         IV.

      For the foregoing reasons, the judgment of the district court is affirmed in part
and reversed in part, and the case is remanded to the district court for further
proceedings consistent with this opinion.



                         ___________________________




Because the latter doctrine was not addressed in the district court and has not been
developed on this appeal, we express no opinion on its application to the
circumstances of this case.

                                         -8-