Rehberg v. Paulk , 611 F.3d 828 ( 2010 )

  •                                                                     [PUBLISH]
                               FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                                 ________________________   ELEVENTH CIRCUIT
                                                                 MAR 11, 2010
                                       No. 09-11897               JOHN LEY
                                 ________________________           CLERK
                            D. C. Docket No. 07-00022-CV-WLS-1
    in his individual capacity,
    in his individual capacity and
    in his official capacity as District
    Attorney of Dougherty County
    KELLY R. BURKE, in his
    individual capacity,
                           Appeal from the United States District Court
                               for the Middle District of Georgia
                                           (March 11, 2010)
    Before CARNES, HULL and ANDERSON, Circuit Judges.
    HULL, Circuit Judge:
           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.
           We review Rehberg’s version of the events as alleged in his complaint,
    accepting them as true.1
             In reviewing a Rule 12(b)(6) motion to dismiss, we accept as true the factual allegations
    in the complaint and all reasonable inferences therefrom. Jackson v. Okaloosa County, Fla., 
    21 F.3d 1531
    , 1534 (11th Cir. 1994).
    A.    The Investigation
          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.”
    B.    First Indictment
          On December 14, 2005, a grand jury indicted Rehberg on charges of
    aggravated assault, burglary, and six counts of “harassing phone calls.” Burke was
    the prosecutor, and Paulk was the sole complaining witness against Rehberg before
    the grand jury. The first indictment alleged Rehberg assaulted Dr. James Hotz
    after unlawfully entering Dr. Hotz’s home. In fact, Rehberg has never been to Dr.
    Hotz’s home, and Dr. Hotz never reported an assault or burglary to law
    enforcement agencies. Paulk later admitted that he never interviewed any
    witnesses or gathered evidence indicating Rehberg committed an aggravated
    assault or burglary. And the alleged “harassing” phone calls to Dr. Hotz all were
    related to the faxes Rehberg had already sent criticizing the hospital.
          The City of Albany Police Department2 did not participate in the
    investigation. Paulk stated that he and Hodges initiated and handled the
    investigation because they lacked confidence in the police department’s ability to
    handle the investigation on its own.
          Rehberg contested the legal sufficiency of the first indictment. On February
    2, 2006, Defendant Burke dismissed and nol-prossed the first indictment.
    C.    Second Indictment
          On February 15, 2006, Defendants Burke and Paulk initiated charges before
    a second grand jury. Paulk and Dr. Hotz appeared as witnesses. The grand jury
    issued a second indictment, charging Rehberg with simple assault against Dr. Hotz
    on August 22, 2004 and five counts of harassing phone calls.
          Rehberg contested the sufficiency of the second indictment too. Rehberg
    alleged he was “nowhere near Dr. Hotz on August 22, 2004,” and “[t]here was no
    evidence whatsoever that Mr. Rehberg committed an assault on anybody as he was
    charged.” At a pretrial hearing on April 10, 2006, Defendant Burke announced the
    second indictment would be dismissed, but Burke did not dismiss it. On July 7,
    2006, the state trial court ordered it dismissed.
              The City of Albany, Georgia, is in Dougherty County.
    D.    Third Indictment
          On March 1, 2006, Defendants Burke and Paulk appeared before a third
    grand jury and secured a third indictment against Rehberg, charging him with
    simple assault and harassing telephone calls. At some unspecified time, Rehberg
    was arrested and briefly detained pursuant to an arrest warrant issued as a result of
    the second and third indictments.
          On May 1, 2006, the state trial court issued two orders dismissing all charges
    against Rehberg because the third indictment did not sufficiently charge Rehberg
    with a criminal offense.
          The three indictments against Rehberg were widely reported in the local
    press. Defendant Burke conducted interviews with the press and issued statements
    saying: (1) “[I]t is never free speech to assault or harass someone, no matter who
    they are and no matter how much you don’t like them,” and (2) “It would be
    ludicrous to say that an individual has the right to go onto someone else’s property
    and burn a cross under the guise of free speech, which is tantamount to what these
    defendants are claiming.”
    E.    District Court Proceedings
          Plaintiff Rehberg filed a verified complaint against Defendants Hodges,
    Burke, and Paulk, in their individual capacities. Rehberg’s complaint alleges ten
    counts, including these four federal § 1983 claims at issue in this appeal:3 (1)
    malicious prosecution against Hodges and Paulk, in violation of Rehberg’s Fourth
    and Fourteenth Amendment rights (Count 6); (2) retaliatory investigation and
    prosecution against Hodges and Paulk, for their alleged retaliation against Rehberg
    because he exercised First Amendment free speech rights (Count 7); (3)
    participation in evidence fabrication, calling Paulk to give false testimony to the
    grand jury, and giving false statements to the media against Burke only (Count 8);
    and (4) conspiracy to violate Rehberg’s constitutional rights under the First,
    Fourth, and Fourteenth Amendments, against Hodges, Burke, and Paulk (Count
            Defendants Hodges, Burke, and Paulk moved to dismiss these counts
    pursuant to Federal Rule of Civil Procedure 12(b)(6). They claimed absolute
    immunity, and, alternatively, qualified immunity. The district court denied the
             Rehberg’s complaint also alleges state law claims for negligence (Counts 1 & 2) and
    invasion of privacy (Counts 3 & 4) against Paulk, which the district court refused to dismiss. At
    this juncture, Defendant Paulk has not appealed the district court’s rulings on those state law
    claims. At oral argument, counsel for Defendant Paulk confirmed to the Court that the state law
    claims in Counts 1, 2, 3, and 4 against Paulk were not on appeal.
            Plaintiff Rehberg also sued Dougherty County and Hodges, in his official capacity.
    Rehberg withdrew Count 5 against Dougherty County in response to its claim of sovereign
    immunity. Rehberg has not appealed the district court’s dismissal of Count 9 against Dougherty
    County, which effectively dismissed Count 9 against Hodges because an official capacity claim
    against Hodges is another moniker for a claim against Dougherty County, Hodges’s employer.
    See Brown v. Neumann, 
    188 F.3d 1289
    , 1290 (11th Cir. 1999). Thus only Counts 6, 7, 8, and 10
    are involved in this appeal.
    Defendants’ motions.
           Defendants Hodges, Burke, and Paulk, in their individual capacities, appeal
    the district court’s denials of immunity as to Rehberg’s above four federal
    constitutional claims.5 We discuss absolute and qualified immunity and then
    Rehberg’s claims.
                                      II. IMMUNITY LAW
    A.     Absolute Immunity
           Traditional common-law immunities for prosecutors apply to civil cases
    brought under § 1983. Imbler v. Pachtman, 
    424 U.S. 409
    , 427-28, 
    96 S. Ct. 984
    993-94 (1976). “[A]t common law, ‘[t]he general rule was, and is, that a
    prosecutor is absolutely immune from suit for malicious prosecution.’” Malley v.
    475 U.S. 335
    , 342, 
    106 S. Ct. 1092
    , 1097 (1986) (quoting Imbler, 424 U.S.
    at 437, 96 S. Ct. at 998). In § 1983 actions, prosecutors have absolute immunity
    for all activities that are “‘intimately associated with the judicial phase of the
    criminal process.’” Van de Kamp v. Goldstein, __ U.S. __, 
    129 S. Ct. 855
    , 860
    (2009) (quoting Imbler, 424 U.S. at 430, 930 S. Ct. at 995); accord Jones, 
    174 F.3d 5
             The denial of absolute or qualified immunity on a motion to dismiss is an appealable
    interlocutory order. See Jones v. Cannon, 
    174 F.3d 1271
    , 1280-81 (11th Cir. 1999); Maggio v.
    211 F.3d 1346
    , 1350 (11th Cir. 2000) (citing Mitchell v. Forsyth, 
    472 U.S. 511
    , 530, 
    105 S. Ct. 2806
    , 2817-18 (1985)). We review de novo the district court’s denial of a motion to
    dismiss on the basis of immunity and for failure to state a constitutional violation. Maggio, 211
    F.3d at 1350; Swann v. S. Health Partners, Inc., 
    388 F.3d 834
    , 836 (11th Cir. 2004).
    at 1281.
          Absolute immunity does not depend entirely on a defendant’s job title, but
    involves a functional approach granting immunity based on conduct. Jones, 174
    F.3d at 1282. This functional approach looks to “the nature of the function
    performed, not the identity of the actor who performed it.” Buckley v.
    509 U.S. 259
    , 269, 
    113 S. Ct. 2606
    , 2613 (1993); accord Imbler, 424
    U.S. at 431 n. 33, 96 S. Ct. at 995 n. 33.
          Absolute immunity accordingly applies to the prosecutor’s actions “in
    initiating a prosecution and in presenting the State’s case.” Imbler, 424 U.S. at
    431, 96 S. Ct. at 995. Prosecutors are immune for appearances in judicial
    proceedings, including prosecutorial conduct before grand juries, statements made
    during trial, examination of witnesses, and presentation of evidence in support of a
    search warrant during a probable cause hearing. Burns v. Reed, 
    500 U.S. 478
    , 490-
    111 S. Ct. 1934
    , 1942 (1991); Kalina v. Fletcher, 
    522 U.S. 118
    , 126, 
    118 S. Ct. 502
    , 507-08 (1997); see also Van de Kamp, 129 S. Ct. at 861. “A prosecutor
    enjoys absolute immunity from allegations stemming from the prosecutor’s
    function as advocate.” Jones, 174 F.3d at 1281. Such absolute immunity also
    “extends to a prosecutor’s acts undertaken . . . in preparing for the initiation of
    judicial proceedings or for trial, and which occur in the course of his role as an
    advocate for the State.” Id. (quotation marks omitted); accord Rowe v. City of Fort
    279 F.3d 1271
    , 1279-80 (11th Cir. 2002) (holding prosecutor who
    proffered perjured testimony and fabricated exhibits at trial is entitled to absolute
    immunity, but a prosecutor who participated in the search of a suspect’s apartment
    is entitled to only qualified immunity).
          If a prosecutor functions in a capacity unrelated to his role as an advocate for
    the state, he is not protected by absolute immunity but enjoys only qualified
    immunity. Kalina, 522 U.S. at 121, 118 S. Ct. at 505 (concluding prosecutor was
    acting as a witness in personally attesting to truth of averments in a “Certification
    for Determination of Probable Cause” for an arrest warrant and was not absolutely
    immune for that witness act, but that prosecutor was absolutely immune for
    preparing and filing an “information charging respondent with burglary and a
    motion for an arrest warrant”); Buckley, 509 U.S. at 275-77, 113 S. Ct. at 2616-18
    (concluding prosecutor’s pre-indictment fabrication of third-party expert testimony
    linking defendant’s boot to bootprint at murder scene and post-indictment
    participation in a press conference were not protected by absolute immunity);
    Burns, 500 U.S. at 496, 111 S. Ct. at 1944-45 (stating prosecutors do not enjoy
    absolute immunity for giving pre-indictment legal advice to the police). A
    prosecutor is not entitled to absolute immunity when he “performs the investigative
    functions normally performed by a detective or police officer.” Buckley, 509 U.S.
    at 273, 113 S. Ct. at 2616; accord Jones, 174 F.3d at 1281-82 (“Although
    absolutely immune for actions taken as an advocate, the prosecutor has only
    qualified immunity when performing a function that is not associated with his role
    as an advocate for the state”); see also Malley, 475 U.S. at 340-41, 106 S. Ct. at
    1096 (concluding police officer was not absolutely immune for drafting “felony
    complaints” with malice and without probable cause and submitting them in
    support of an application for arrest warrants).
    B.    Qualified Immunity
          Qualified immunity shields government officials who perform discretionary
    governmental functions from civil liability so long as their conduct does not violate
    any “clearly established statutory or constitutional rights of which a reasonable
    person would have known.” Harlow v. Fitzgerald, 
    457 U.S. 800
    , 818, 
    102 S. Ct. 2727
    , 2738 (1982). A government agent is entitled to immunity unless his act is
    “so obviously wrong, in the light of pre-existing law, that only a plainly
    incompetent officer or one who was knowingly violating the law would have done
    such a thing.” Lassiter v. Ala. A&M Univ., 
    28 F.3d 1146
    , 1149 (11th Cir. 1994)
    (en banc).
          To evaluate claims of qualified immunity, the Court considers whether (1)
    the plaintiff has alleged a violation of a constitutional right; and (2) whether the
    right was “clearly established” at the time of the defendant’s misconduct. This
    two-pronged analysis may be done in whatever order is deemed most appropriate
    for the case. Pearson v. Callahan, 
    555 U.S.
    129 S. Ct. 808
    , 821 (2009).
           With this immunity background, we turn to Rehberg’s claims.
                     III. COUNT 6 – MALICIOUS PROSECUTION
           Count 6 alleges Defendants Hodges and Paulk violated Rehberg’s Fourth
    and Fourteenth Amendment rights through their “malicious prosecution” of him,
    resulting in his indictment and arrest.6 Rehberg alleges that (1) Hodges and Paulk
    knew there was no probable cause to indict him, and therefore they got together
    with malice, fabricated evidence (i.e., Paulk’s false testimony), and decided to
    present that fabricated evidence to the grand jury; (2) Paulk, at Hodges’s direction,
    then testified falsely before the grand jury, resulting in Rehberg’s indictment and
    arrest; and (3) Hodges and Paulk invaded Rehberg’s privacy by illegally issuing
    subpoenas to BellSouth, Alltel, and Exact Advertising, without any pending
    indictment and as a discovery device for private civilians. We first discuss Paulk’s
    false testimony before the grand jury and then the Defendants’ pre-indictment
             Rehberg alleges his arrest was an unreasonable seizure. The Fourth Amendment
    protection against “unreasonable” searches and seizures was made applicable to the States
    through the Fourteenth Amendment. Major League Baseball v. Crist, 
    331 F.3d 1177
    , 1179 n.4
    (11th Cir. 2003).
    conduct and subpoenas.
    A.    Paulk’s Grand Jury Testimony
          Even if Hodges and Paulk knew Paulk’s testimony was false, Paulk receives
    absolute immunity for the act of testifying to the grand jury. Briscoe v. LaHue,
    460 U.S. 325
    , 326, 
    103 S. Ct. 1108
    , 1111-12 (1983) (affirming that common-law
    immunities granted to witnesses in judicial proceedings required giving absolute
    immunity from § 1983 suit to police officer accused of giving false testimony at
    trial); Burns, 500 U.S. at 492, 111 S. Ct. at 1942 (holding prosecutor was
    absolutely immune for “appearance in court in support of an application for a
    search warrant and the presentation of evidence at that hearing”); Jones, 174 F.3d
    at 1288 (“[P]rosecutors and witnesses have absolute immunity for claims of
    conspiracy to commit perjury based on a witness’s allegedly false testimony at
    trial, before a grand jury, or at a post-conviction hearing.”); Strength v. Hubert,
    854 F.2d 421
    , 422-24 (11th Cir. 1988) (concluding investigator for state Attorney
    General’s office received absolute immunity for false testimony to a grand jury, at
    which the defendant investigator was the sole witness);7 Kelly v. Curtis, 
    21 F.3d 1544
    , 1553 (11th Cir. 1994) (holding detective immune for grand jury testimony).
          We recognize that Plaintiff Rehberg alleges Defendant Paulk was the sole
              Overruled on other grounds, Whiting v. Traylor, 
    85 F.3d 581
     (11th Cir. 1996).
    “complaining witness” before the grand jury. However, in Jones, “we expressly
    reject[ed] carving out an exception to absolute immunity for grand jury testimony,
    even if false and even if [the detective] were construed to be a complaining
    witness.” Jones, 174 F.3d at 1287 n.10; see Rowe, 279 F.3d at 1285 (stating Jones
    “reject[ed] an exception for the testimony of ‘complaining witnesses’”). In Jones,
    this Court aligned itself with the Third Circuit’s decision in Kulwicki v. Dawson,
    969 F.2d 1454
    , 1467 n.16 (3d Cir. 1992), which rejected the “complaining
    witness” exception to absolute immunity for false grand jury testimony. Jones,
    174 F.3d at 1287 n.10. The Jones Court reasoned that allowing civil suits for false
    grand jury testimony would result in depositions, emasculate the confidential
    nature of grand jury testimony, and eviscerate the traditional absolute immunity for
    witness testimony in judicial proceedings:
                 [T]his case vividly illustrates the serious problems with
                 carving out such an exception and imposing civil liability
                 for . . . false testimony deceiving the grand jury. To
                 prove or to defend against such a claim would necessitate
                 depositions from the prosecutor, the grand jury witnesses,
                 and the grand jury members . . . [which], in effect, would
                 emasculate both the absolute immunity for grand jury
                 testimony and the confidential nature of grand jury
                 proceedings. The remedy for false grand jury testimony
                 is criminal prosecution for perjury and not expanded civil
                 liability and damages.
    Jones, 174 F.3d at 1287 n.10.8 And the Supreme Court “consistently ha[s]
    recognized that the proper functioning of our grand jury system depends upon the
    secrecy of grand jury proceedings.” United States v. Sells Eng’g, Inc., 
    463 U.S. 418
    , 424, 
    103 S. Ct. 3133
    , 3138 (1983) (quotation marks omitted). Based on
    Jones, we reject Rehberg’s “complaining witness” exception to absolute immunity
    for false grand jury testimony.9
    B.     Hodges and Paulk’s Pre-Indictment Investigation
           Distilled to its essence, Defendants’ alleged pre-indictment conduct
    (excepting the subpoenas) is this: Hodges and Paulk, acting as investigators, got
            In Mastroianni v. Bowers, 
    173 F.3d 1363
     (11th Cir. 1999), this Court declined to decide
    whether to adopt a “complaining witness” exception because there was no factual finding in that
    case that the defendant Georgia Bureau of Investigation officer was equivalent to a “complaining
    witness.” Id. at 1367 n.1. So Mastroianni did not answer the question presented here, but Jones
             Two circuits carved out a complaining-witness exception to absolute immunity for false
    grand jury testimony. See, e.g., Harris v. Roderick, 
    126 F.3d 1189
    , 1199 (9th Cir. 1997) (Deputy
    U.S. Marshals not absolutely immune for false testimony before a grand and petit jury); White v.
    855 F.2d 956
     (2d Cir. 1988) (police officer, as the “complaining witness,” was not
    absolutely immune for false grand jury testimony). These decisions rely on Malley v. Briggs,
    475 U.S. at 340, 106 S. Ct. at 1096, which concluded that a police officer did not receive
    absolute immunity for drawing up “felony complaints” with malice and without probable cause
    and submitting them in support of an application for arrest warrants. The Supreme Court held
    similarly in Kalina v. Fletcher, 522 U.S. at 120, 129-31, 118 S. Ct. at 505, 509-10, finding a
    prosecutor was not absolutely immune for acting as a witness in personally attesting to the truth
    of averments in a certification affidavit supporting an application for probable cause for an arrest
            Acknowledging White v. Frank relies on Malley, the Jones Court noted that carving out
    an immunity exception for grand jury testimony would eviscerate the secrecy of grand jury
    proceedings, a concern not implicated by the “felony complaints” filed to support an arrest
    warrant in Malley and the personal certification for an arrest warrant in Kalina.
    together as a favor to the hospital, with malice and without probable cause, and
    made up a story about Rehberg, and then Paulk (at Hodges’s direction) told that
    fake story under oath to the grand jury, leading to Rehberg’s indictment and arrest.
    We already determined supra that Paulk receives absolute immunity for the actual
    grand jury testimony itself. The question before us now is whether absolute
    immunity applies to the alleged conspiracy decision in the investigative stage to
    make up and present Paulk’s false testimony to the grand jury. Our precedent
    answers this question too. See Mastroianni, 173 F.3d at 1367; Rowe, 279 F.3d at
    1282; Jones, 174 F.3d at 1289.
          In Mastroianni, the plaintiff alleged defendant Yeomans, a Georgia Bureau
    of Investigation agent, “engaged in a pretestimonial conspiracy to present false
    evidence, for which neither absolute nor qualified immunity is available.”
    Mastroianni, 173 F.3d at 1367. This Court first stressed that “a witness has
    absolute immunity from civil liability based on his grand jury testimony. See
    Strength, 854 F.2d at 425, relying on Briscoe v. La Hue, 
    460 U.S. 325
    103 S. Ct. 1108
     [ ] (1983).” Id. The Mastroianni Court then pointed out that while the
    plaintiff “contend[ed] that Yeomans committed numerous acts in furtherance of a
    conspiracy to present false testimony before the grand jury convened, the record
    itself support[ed] such an inference only if we consider as evidence Yeomans’
    testimony as it relates back to Yeomans’ pretestimonial acts and statements.”
    Mastroianni, 173 F.3d at 1367. In other words, because the only evidence to show
    a conspiracy in the pre-indictment phase was Yeomans’s later false grand jury
    testimony, and because Yeomans was immune for that testimony, we concluded
    that Yeomans was absolutely immune for conspiracy to present or give grand jury
    testimony. Id. (“Because we may not consider such testimony as a factor upon
    which to base Yeomans’ potential liability, we conclude that Yeomans is entitled
    to absolute immunity for his actions in this case”).
          This Court subsequently applied Mastroianni in Jones and Rowe, in each
    case concluding that absolute immunity applied equally both to the false testimony
    itself and to the alleged conspiracies to present false testimony. Jones, 174 F.3d at
    1289 (“To allow a § 1983 claim based on subornation of perjured testimony where
    the allegedly perjured testimony itself is cloaked in absolute immunity would be to
    permit through the back door what is prohibited through the front”); Rowe, 279
    F.3d at 1282 (“It would be cold comfort for a prosecutor to know that he is
    absolutely immune from direct liability for actions taken as prosecutor, if those
    same actions could be used to prove him liable on a conspiracy theory involving
    conduct for which he was not immune”).
          Since Paulk receives absolute immunity for his false testimony before the
    grand jury, Hodges and Paulk are similarly immune for their alleged conspiracy to
    fabricate and present false testimony to the grand jury. Rowe, 279 F.3d at 1282
    (“[A] witness’s absolute immunity from liability for testifying forecloses any use
    of that testimony as evidence of the witness’s membership in a conspiracy prior to
    his taking the stand”).
          It is important to point out that Hodges and Paulk generally would not
    receive absolute immunity for fabricating evidence, because investigating and
    gathering evidence falls outside the prosecutor’s role as an advocate. See Buckley,
    509 U.S. at 262-64, 113 S. Ct. at 2610-11 (no immunity for prosecutor who
    fabricated expert testimony linking defendant’s boot with bootprint at murder
    scene); Rowe, 279 F.3d at 1281 (no immunity for fabrication of jump rope); Jones,
    174 F.3d at 1289-90 (no immunity for fabrication of bootprint); Riley v. City of
    Montgomery, Ala., 
    104 F.3d 1247
    , 1253 (11th Cir. 1997) (no immunity for police
    officer’s planting of cocaine). All of these cases involved a particular discrete item
    of physical or expert evidence that was falsely created during the investigative
    stage to link the accused to a crime.
          In contrast, there is no allegation of any physical or expert evidence that
    Hodges or Paulk fabricated or planted. There is no allegation of a pre-indictment
    document such as a false affidavit or false certification. Rather, Hodges and Paulk
    are accused of fabricating together only the testimony Paulk later gave to the grand
    jury. No evidence existed until Paulk actually testified to the grand jury. Stated
    differently, the only evidence Rehberg alleges was fabricated is Paulk’s false grand
    jury testimony, for which Paulk receives absolute immunity.10
           For all these reasons, we conclude Hodges and Paulk are entitled to absolute
    immunity for the pre-indictment conduct of conspiring to make up and present
    Paulk’s false testimony to the grand jury.
    C.     Subpoenas During Investigation
           Rehberg’s allegations regarding the subpoenas to his telephone and Internet
    providers all recount pre-indictment investigative conduct by Hodges and Paulk.
    A prosecutor loses the cloak of absolute immunity by stepping out of his role as an
    advocate and performing “investigative” functions more commonly performed by
    law enforcement officers. Buckley, 509 U.S. at 273, 113 S. Ct. at 2616; Burns,
    500 U.S. at 496, 111 S. Ct. at 1944-45; Rowe, 279 F.3d at 1280; Jones, 174 F.3d at
    1285. Hodges and Paulk accordingly do not receive absolute immunity for
    preparing and filing subpoenas during the investigation of Rehberg.
           Hodges and Paulk, however, do receive qualified immunity because
            Rehberg does not allege, for instance, that Hodges and Paulk fabricated physical
    evidence linking him to Dr. Hotz’s house or convinced another witness to testify falsely about
    Rehberg’s involvement. The only evidence presented to the grand jury was Paulk’s testimony
    and Dr. Hotz’s testimony (which Rehberg does not allege was false).
    Rehberg’s subpoena allegations do not state a constitutional violation.11 The
    subpoenas covered information Rehberg had provided voluntarily to third parties
    and for which Rehberg did not have a legitimate expectation of privacy. Thus, the
    subpoenas did not violate Rehberg’s Fourth Amendment rights to be free of
    unreasonable search and seizure.12
           In order for Fourth Amendment protections to apply, the person invoking the
    protection must have an objectively reasonable expectation of privacy in the place
    searched or item seized. Minnesota v. Carter, 
    525 U.S. 83
    , 88, 
    119 S. Ct. 469
    , 473
    (1998); Katz v. United States, 
    389 U.S. 347
    88 S. Ct. 507
     (1967). The Supreme
    Court “consistently has held that a person has no legitimate expectation of privacy
    in information he voluntarily turns over to third parties.” Smith v. Maryland, 
    442 U.S. 735
    , 743-44, 
    99 S. Ct. 2577
    , 2582 (1979). “[T]he Fourth Amendment does
    not prohibit the obtaining of information revealed to a third party and conveyed by
    him to Government authorities, even if the information is revealed on the
    assumption that it will be used only for a limited purpose and the confidence
    placed in the third party will not be betrayed.” United States v. Miller, 
    425 U.S. 11
            Rehberg’s complaint does not allege Defendant Burke participated in the issuance of
    the subpoenas.
             The Fourth Amendment provides: “The right of the people to be secure in their persons,
    houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .
    .” U.S. Const. amend IV.
    435, 443, 
    96 S. Ct. 1619
    , 1624 (1976).
          More specifically, a person does not have a legitimate expectation of privacy
    in the numerical information he conveys to a telephone company in the ordinary
    course of business. Smith, 442 U.S. at 743-44, 
    99 S. Ct. 2582
     (“[E]ven if
    petitioner did harbor some subjective expectation that the phone numbers he dialed
    would remain private, this expectation is not one that society is prepared to
    recognize as reasonable”) (quotation marks omitted); accord United States v.
    936 F.2d 1249
    , 1250 (11th Cir. 1991) (“The Supreme Court has held
    that the installation of a pen register does not constitute a search under the Fourth
    Amendment of the Constitution and does not warrant invocation of the
    exclusionary rule.”).
          Here, Rehberg lacks a reasonable expectation of privacy in the phone and
    fax numbers he dialed. Once he voluntarily provided that information to BellSouth
    and Alltel (later Sprint), Rehberg lacked any further valid expectation that those
    third parties would not turn the information over to law enforcement officers.
    Absent a valid right of privacy, Rehberg cannot state a constitutional violation
    regarding the subpoenas for his phone and fax information.
          A person also loses a reasonable expectation of privacy in emails, at least
    after the email is sent to and received by a third party. See Guest v. Leis, 
    255 F.3d 21
    325, 333 (6th Cir. 2001) (An individual sending an email loses “a legitimate
    expectation of privacy in an e-mail that had already reached its recipient”); United
    States v. Lifshitz, 
    369 F.3d 173
    , 190 (2d Cir. 2004) (An individual may not “enjoy
    [] an expectation of privacy in transmissions over the Internet or e-mail that have
    already arrived at the recipient”); see also United States v. Perrine, 
    518 F.3d 1196
    1204-05 (10th Cir. 2008) (“Every federal court to address this issue has held that
    subscriber information provided to an internet provider is not protected by the
    Fourth Amendment’s privacy expectation”) (collecting cases).
          Rehberg’s voluntary delivery of emails to third parties constituted a
    voluntary relinquishment of the right to privacy in that information. Rehberg does
    not allege Hodges and Paulk illegally searched his home computer for emails, but
    alleges Hodges and Paulk subpoenaed the emails directly from the third-party
    Internet service provider to which Rehberg transmitted the messages. Lacking a
    valid expectation of privacy in that email information, Rehberg fails to state a
    Fourth Amendment violation for the subpoenas for his Internet records.
          Because Rehberg’s allegations related to the subpoenas do not state a
    violation of a constitutional right, the district court erred in denying qualified
    immunity to Hodges and Paulk on Rehberg’s subpoena claims.
              In Count 7, Rehberg alleges Hodges and Paulk violated his First
    Amendment free speech rights by retaliating against him for his criticism of the
    hospital in his faxes. Rehberg alleges Hodges’s and Paulk’s decisions to
    investigate him, issue subpoenas, provide his information to paid civilians, and
    procure wrongful indictments were in retaliation for his faxes and criticism of the
    hospital and were all made without probable cause.13
              We first review Hartman v. Moore, 
    547 U.S. 250
    126 S. Ct. 1695
    which addresses retaliatory-prosecution claims.
    A.        Hartman v. Moore
              In Hartman, plaintiff Moore brought a Bivens14 action against postal
    inspectors and a federal prosecutor for retaliatory prosecution.15 Because of
    Moore’s criticism of and lobbying to the U.S. Postal Service, postal inspectors
    launched criminal investigations against Moore and pressured the United States
             To the extent Rehberg relies on the Fourth Amendment, “there is no retaliation claim
    under the Fourth Amendment separate and distinct from [Rehberg’s] malicious prosecution . . .
    claim[].” Wood v. Kesler, 
    323 F.3d 872
    , 883 (11th Cir. 2003). “Instead, the only cause of
    action for retaliation that arguably applies here is retaliatory prosecution in violation of the First
    Amendment.” Id.
                   See Bivens v. Six Unknown Fed. Narcotics Agents, 
    403 U.S. 388
    91 S. Ct. 1999
             Moore’s company manufactured a multiline optical character reader useful in sorting
    mail. Hartman, 547 U.S. at 252, 126 S. Ct. at 1699. He lobbied the U.S. Postal Service to
    purchase multiline readers and criticized its reliance on single-line readers. Id. at 253, 126 S. Ct.
    at 1699.
    Attorney’s Office to indict him, “[n]otwithstanding very limited evidence.” Id. at
    253-54, 126 S. Ct. at 1699-1700. Although they did not testify, the postal
    inspectors drafted “witness statements” for other witnesses and provided them to
    the prosecutor, who presented them to the grand jury. Moore v. United States, 
    213 F.3d 705
    , 707 (D.C. Cir. 2000). The district court dismissed the criminal charges
    against Moore for a “complete lack of direct evidence.” Hartman, 547 U.S. at 254,
    126 S. Ct. at 1700.
          In Moore’s subsequent Bivens action for retaliatory prosecution, the district
    court granted absolute immunity to the prosecutor but denied qualified immunity to
    the postal inspectors. Id. at 255, 126 S. Ct. at 1701. As to the prosecutor, the D.C.
    Circuit affirmed absolute immunity for the retaliatory decision to prosecute Moore
    and the prosecutor’s concealment of exculpatory evidence from the grand jury,
    manipulation of evidence before the grand jury, and failure to disclose exculpatory
    material before trial. Moore, 213 F.3d at 708. As to the postal inspectors, the D.C.
    Circuit affirmed the denial of qualified immunity and allowed Moore’s retaliatory-
    prosecution claim to proceed against them, even though Moore had not shown an
    absence of probable cause for the criminal charges against him.
          In reversing the D.C. Circuit’s denial of qualified immunity to the postal
    inspectors, the Supreme Court in Hartman concluded that to bring a retaliatory-
    prosecution claim, the plaintiff must show an absence of probable cause for the
    prosecution. Hartman, 547 U.S. at 252, 126 S. Ct. at 1699. The Supreme Court
    first noted, “as a general matter the First Amendment prohibits government
    officials from subjecting an individual to retaliatory actions, including criminal
    prosecutions, for speaking out.” Id. at 256, 126 S. Ct. at 1701 (citations and
    quotation marks omitted). The Supreme Court, however, explained that a
    retaliatory-prosecution suit cannot be brought against the prosecutor, but only
    against the “non-prosecuting official” who successfully induced the prosecutor to
    bring charges that would not otherwise have been brought, as follows:
                 A Bivens (or § 1983) action for retaliatory prosecution
                 will not be brought against the prosecutor, who is
                 absolutely immune from liability for the decision to
                 prosecute. Instead, the defendant will be a
                 nonprosecutor, an official, like an inspector here, who
                 may have influenced the prosecutorial decision but did
                 not himself make it, and the cause of action will not be
                 strictly for retaliatory prosecution, but for successful
                 retaliatory inducement to prosecute. The consequence is
                 that a plaintiff like Moore must show that the
                 nonprosecuting official acted in retaliation, and must also
                 show that he induced the prosecutor to bring charges that
                 would not have been initiated without his urging.
    Id. at 261-62, 126 S. Ct. at 1704-05 (emphasis added). To sue for retaliatory
    prosecution, a plaintiff must establish a “but-for” causal connection between the
    retaliatory animus of the non-prosecutor and the prosecutor’s decision to prosecute.
    See id. at 256, 261, 126 S. Ct. at 1701, 1704 (discussing “but-for cause” and “but-
    for basis” for the prosecutor’s decision to prosecute).16
           And Hartman indicates that to establish a prima facie case of this but-for
    causal connection, a plaintiff must plead and prove both (1) a retaliatory motive on
    the part of the non-prosecutor official, and (2) the absence of probable cause
    supporting the prosecutor’s decision. Id. at 265, 126 S. Ct. at 1706; see also Wood,
    323 F.3d at 883 (First Amendment retaliatory-prosecution claim is defeated by the
    existence of probable cause). A retaliatory motive on the part of a “non-
    prosecuting official” combined with an absence of probable cause will create “a
    prima facie inference that the unconstitutionally motivated inducement infected the
    prosecutor's decision to bring the charge.” Hartman, 547 U.S. at 265, 126 S. Ct. at
    1706. Importantly, the absence of probable cause “is not necessarily dispositive”
    of whether the unconstitutionally motivated inducement succeeded, but will create
    a prima facie inference that it did. Id. The burden then shifts to the defendant
    official to show “that the action would have been taken anyway, independently of
    any retaliatory animus.” Id. at 261, 126 S. Ct. at 1704. In other words, the
    defendant official will not be liable if he can show the prosecutor would have taken
              In a footnote, the Supreme Court noted that Moore’s complaint charged the prosecutor
    with acting in both an investigatory and prosecutorial capacity, but that no appeal or claim
    against the prosecutor was before the Supreme Court. Hartman, 547 U.S. at 262 n.8, 126 S. Ct.
    at 1705 n.8.
    the action complained of anyway. Id.
    B.     Rehberg’s Retaliatory-Prosecution Claims
           Hartman dictates the outcome of Rehberg’s retaliatory-prosecution claim in
    Count 7. First, as to Hodges, Rehberg alleges Hodges was in communication with
    Burke about the decision to prosecute, even after Hodges recused. Hodges’s
    alleged decision to prosecute Rehberg, even if made without probable cause and
    even if caused solely by Paulk’s and his unconstitutional retaliatory animus, is
    protected by absolute immunity. Hartman, 547 U.S. at 261-62, 126 S. Ct. at 1704-
           As to Paulk, Rehberg must show investigator Paulk’s retaliation against
    Rehberg successfully induced the prosecution and was the “but-for” cause of the
    prosecution. Hartman, 547 U.S. at 265, 126 S. Ct. at 1701. Accordingly, Rehberg
    must show that prosecutor Burke (himself or with Hodges’s influence) would not
    have prosecuted Rehberg but for Paulk’s retaliatory motive and conduct.17
           The very detailed allegations in Rehberg’s complaint satisfy the two
    requirements for a prima facie case of retaliatory prosecution: non-prosecutor
    Paulk’s retaliatory motive, and the absence of probable cause for prosecutor Burke
            Count 7 of Rehberg’s complaint does not name Burke as a defendant, but Count 7
    claims Paulk’s retaliatory motive and actions “wrongfully influenced and instigated the
    prosecutorial decision to bring charges against Mr. Rehberg.”
    to bring charges. Hartman, 547 U.S. at 265, 126 S. Ct. at 1706. For example,
    Rehberg alleges “[t]here was no probable cause for the underlying criminal charges
    against Mr. Rehberg and such charges would not have been brought if there was no
    retaliatory motive.” Rehberg supports this alleged lack of probable cause by
    alleging Paulk admitted that “he never interviewed any witnesses or gathered any
    evidence indicating that Mr. Rehberg committed any aggravated assault or
    burglary,” and Paulk’s false testimony was the only evidence Burke presented in
    support of the first indictment. Without Paulk’s allegedly false testimony, Burke
    could not have procured the first indictment because there was no other evidence.
    Rehberg also alleges Hodges and Paulk acted in retaliation for Rehberg’s criticisms
    of the activities and financial management of a public hospital to which they had
    close political connections and personal relationships and that chilling Rehberg’s
    speech was a motivating factor in all of Hodges’s and Paulk’s conduct in
    investigating and prosecuting him.
          In sum, Rehberg sufficiently has alleged the requisite retaliatory motive,
    absence of probable cause, and but-for causation (i.e., that Burke would not have
    prosecuted Rehberg but for Paulk’s false testimony). Therefore, at this pleading
    juncture, the district court did not err in denying absolute and qualified immunity
    to Defendant Paulk on Rehberg’s retaliatory-prosecution claim.
    C.     Retaliatory Investigation Claim
           Rehberg’s complaint also alleges a “retaliatory investigation” claim against
    Hodges and Paulk. For example, Rehberg’s complaint alleges Hodges and Paulk
    together decided to investigate Rehberg and took several steps during the
    investigation because each of them had retaliatory animus. These allegations of
    coordinated and joint actions are replete throughout the complaint. E.g., Compl. ¶
    99 (“Mr. Paulk and Mr. Hodges instituted an investigation . . .”), 124 (“Chilling his
    political speech was a substantial or motivating factor in the wrongful conduct of
    Mr. Paulk and Mr. Hodges in investigating Mr. Rehberg . . .”), ¶¶ 157-61
    (conspiracy claim).
           Hartman does not help us with this claim because the Supreme Court
    pointedly did not decide whether “simply conducting retaliatory investigation with
    a view to promote prosecution is a constitutional tort.” Hartman, 547 U.S. at 262
    n. 9, 126 S. Ct. at 1705 n. 9 (“Whether the expense or other adverse consequences
    of a retaliatory investigation would ever justify recognizing such an investigation
    as a distinct constitutional violation is not before us”).18
           As noted above, only qualified immunity, not absolute immunity, applies to
    conduct taken in an investigatory capacity as opposed to a prosecutorial capacity.
                Rehberg does not allege he incurred any expenses in the investigation stage.
    The only actual investigatory conduct alleged is the issuance of subpoenas, which,
    as we already stated above, did not violate Rehberg’s Fourth Amendment rights.
    Because Hodges and Paulk’s issuance of the subpoenas did not violate Rehberg’s
    constitutional rights (Count 6), we are inclined to agree with the government that
    Hodges and Paulk’s retaliatory animus (Count 7) does not create a distinct
    constitutional tort.19
           But even if we assume Rehberg has stated a constitutional violation by
    alleging that Hodges and Paulk initiated an investigation and issued subpoenas in
    retaliation for Rehberg’s exercise of First Amendment rights, Hodges and Paulk
    still receive qualified immunity because Rehberg’s right to be free from a
    retaliatory investigation is not clearly established. The Supreme Court has never
    defined retaliatory investigation, standing alone, as a constitutional tort, Hartman,
    547 U.S. at 262 n.9, 126 S. Ct. at 1705 n.9, and neither has this Court. Without
    this sort of precedent, Rehberg cannot show that the retaliatory investigation
    alleged here violated his First Amendment rights. See Oliver v. Fiorino, 
    586 F.3d 898
    , 907 (11th Cir. 2009) (“In order to determine whether a right is clearly
              The initiation of a criminal investigation in and of itself does not implicate a federal
    constitutional right. The Constitution does not require evidence of wrongdoing or reasonable
    suspicion of wrongdoing by a suspect before the government can begin investigating that
    suspect. See United States v. Aibejeris, 
    28 F.3d 97
    , 99 (11th Cir. 1994). No § 1983 liability can
    attach merely because the government initiated a criminal investigation.
    established, we look to the precedent of the Supreme Court of the United States,
    this Court’s precedent, and the pertinent state’s supreme court precedent,
    interpreting and applying the law in similar circumstances”). Hodges and Paulk
    accordingly are entitled to qualified immunity for Rehberg’s retaliatory
    investigation claims in Count 7.
    D.     Count 8 (Fabrication of Evidence and Press Statements Against Burke)
           Count 8 is against only Burke. Rehberg alleges Burke violated his
    “constitutional rights” by (1) “participat[ing] in fabricating evidence”; (2)
    presenting Paulk’s perjured testimony to the grand jury; and (3) making
    defamatory statements to the media which “damaged Mr. Rehberg’s reputation.”20
           As a special prosecutor appointed to stand in for Hodges, Burke receives the
    full scope of absolute prosecutorial immunity and is absolutely immune for
    Rehberg’s claims of malicious prosecution and the presentation of perjured
    testimony to a grand jury. For the same reasons explained above, Burke also is
    absolutely immune for participating in the conspiracy to fabricate Paulk’s grand
    jury testimony against Rehberg.
           Burke’s statements to the media, however, are not cloaked in absolute
    immunity because “[c]omments to the media have no functional tie to the judicial
              Burke is not alleged to have participated in subpoenaing Rehberg’s telephone and
    Internet providers.
    process just because they are made by a prosecutor,” and they are not part of the
    prosecutor’s role as an advocate of the State. See Buckley, 509 U.S. at 277-78,
    113 S. Ct. at 2618 (“The conduct of a press conference does not involve the
    initiation of a prosecution, the presentation of the state’s case in court, or actions
    preparatory for these functions”); Hart v. Hodges, 
    587 F.3d 1288
    , 1297 (11th Cir.
    2009). Burke’s immunity for the alleged press statements must arise, if at all,
    through qualified immunity.
           A tort claim, such as Rehberg’s defamation allegation in Count 8, does not
    give rise to a § 1983 due process claim unless there is an additional constitutional
    injury alleged. Cypress Ins. Co. v. Clark, 
    144 F.3d 1435
    , 1438 (11th Cir. 1998).
    “The Supreme Court . . . held that injury to reputation, by itself, does not constitute
    the deprivation of a liberty or property interest protected under the Fourteenth
    Amendment.” Behrens v. Regier, 
    422 F.3d 1255
    , 1259 (11th Cir. 2005) (citing
    Paul v. Davis, 
    424 U.S. 693
    , 701-02, 
    96 S. Ct. 1155
    , 1060-61 (1976)).21 Damages
    to a plaintiff’s reputation “are only recoverable in a section 1983 action if those
    damages were incurred as a result of government action significantly altering the
              Rehberg does not specifically identify what constitutional provision Burke’s media
    statements violated. We assume Rehberg asserts a Fourteenth Amendment due process claim.
    See, e.g., Paul, 424 U.S. at 712, 96 S. Ct. at 1165-66; Cypress, 144 F.3d at 1436. Rehberg does
    not identify another constitutional theory that might support a § 1983 action for false statements
    to the media.
    plaintiff’s constitutionally recognized legal rights.” Cypress, 144 F.3d at 1438.
           This doctrine is known as the “stigma-plus” test, Cannon v. City of W. Palm
    250 F.3d 1299
    , 1302 (11th Cir. 2001), and requires the plaintiff to show
    both a valid defamation claim (the stigma) and “the violation of some more
    tangible interest” (the plus). Behrens, 422 F.3d at 1260 (quotation marks omitted).
    “To establish a liberty interest sufficient to implicate the fourteenth amendment
    safeguards, the individual must be not only stigmatized but also stigmatized in
    connection with . . . [a] government official’s conduct [that] deprived the plaintiff
    of a previously recognized property or liberty interest in addition to damaging the
    plaintiff’s reputation.” Id. (citations and quotation marks omitted).22 The “stigma-
    plus” test requires not only allegations stating a common law defamation claim, but
    also an additional constitutional injury, tied to a previously recognized
    constitutional property or liberty interest, flowing from the defamation. Cypress,
    144 F.3d at 1436-37.
              “While we have in a number of our prior cases pointed out the frequently drastic effect
    of the ‘stigma’ which may result from defamation by the government in a variety of contexts,
    this line of cases does not establish the proposition that reputation alone, apart from some more
    tangible interests such as employment, is either ‘liberty’ or ‘property’ by itself sufficient to
    invoke the procedural protection of the Due Process Clause.” Paul, 424 U.S. at 701, 96 S. Ct. at
    1160-61; see also Siegert v. Gilley, 
    500 U.S. 226
    , 234, 
    111 S. Ct. 1789
    , 1794 (1991) (“Most
    defamation plaintiffs attempt to show some sort of special damage and out-of-pocket loss which
    flows from the injury to their reputation. But so long as such damage flows from injury caused
    by the defendant to a plaintiff’s reputation, it may be recoverable under state tort law but it is not
    recoverable in a Bivens action.”).
          Rehberg’s complaint alleges damage to his reputation but does not allege the
    required deprivation of any previously recognized constitutional property or liberty
    interest. The only factual allegations Rehberg makes regarding Burke’s media
    statements are these: “Mr. Rehberg . . . was subjected to extensive publicity in the
    media where he was identified as being charged with multiple felonies and
    misdemeanors, and publicly identified by the acting District Attorney as having
    committed an assault and burglary. The damage of three indictments on his public
    record will remain with him and his wife and children for the rest of their lives.”
    He continues by alleging, “[t]hese wrongful indictments will always be associated
    with his name and have caused and will cause significant personal, professional
    and economic damages to Mr. Rehberg.” Rehberg alleges Burke’s media
    statements “wrongfully damaged [his] reputation.”
          In short, Rehberg’s defamation allegations are too generalized to show a
    previously recognized constitutional deprivation flowing from Burke’s alleged
    defamatory statements. Damage to reputation alone is insufficient to state a
    Fourteenth Amendment due process claim. Cypress, 144 F.3d at 1437-38
    (“Indeed, [in Siegert v. Gilley, 
    500 U.S. 226
    111 S. Ct. 1789
     (1991)] the
    [Supreme] Court specifically rejected the notion that defamation by a government
    actor that causes injury to professional reputation violates procedural due
          The district court averted this settled law by connecting Burke’s media
    statements to “the alleged Fourteenth Amendment violation alleged by Plaintiff,
    i.e., violation of his right to be free from prosecution based upon false
    evidence/charges.” This was error. The “stigma-plus” test requires the plaintiff to
    show deprivation of a previously recognized Fourteenth Amendment property or
    liberty interest “in connection with” the claimed defamation. Even liberally
    construed, Rehberg’s complaint does not allege a procedural due process claim
    under the Fourteenth Amendment. See Albright v. Oliver, 
    510 U.S. 266
    , 272, 
    114 S. Ct. 807
    , 812 (1994). Rehberg does not allege Dougherty County or the
    individual defendants denied him the constitutionally required procedures
    necessary to challenge his indictments and arrest. Indeed, Rehberg’s successful
    challenges to the three indictments show otherwise. And, under the Fourteenth
    Amendment, there is no substantive due process right to be free from malicious
    prosecution without probable cause. Id. at 274, 114 S. Ct. at 813. A malicious
    prosecution claim arises under the Fourth Amendment, not Fourteenth Amendment
    substantive due process.
          Therefore, the only remaining “plus” Rehberg identifies is the right to be
    free from malicious prosecution and unreasonable detention under the Fourth
    Amendment. However, Rehberg’s complaint does not allege that Burke’s media
    statements caused Rehberg’s indictments and arrest.23 For example, there is no
    allegation that the grand jury relied on Burke’s press statements in indicting
    Rehberg or that the Defendants relied on Burke’s media statements as probable
    cause to arrest Rehberg. Paul’s “stigma-plus” test is not satisfied by simply
    alleging a constitutional violation somewhere in the case. The constitutional
    violation must itself flow from the alleged defamation.24
           In any event, Rehberg cannot use the prosecution itself (the indictment and
    arrest) as the basis for constitutional injury supporting a § 1983 defamation claim.
    The Seventh Circuit considered this precise situation, concluding the plaintiff must
    point to some constitutional wrong, other than the indictment and related events, in
    order to support a § 1983 constitutional claim based on defamation. “Identifying
    the arrest and imprisonment as the loss of liberty does not assist [the plaintiff],
    however, because [the prosecutor] has absolute immunity from damages for these
            The complaint does not clearly state whether Burke made his media statements before
    Rehberg was indicted or after, but the complaint also does not allege any fact showing that
    Burke’s media statements caused Rehberg to be indicted.
             The district court cited Riley v. City of Montgomery, Ala., 104 F.3d at 1253, for the
    proposition that fabricating evidence violates an accused’s constitutional rights, and thus since
    Rehberg alleges fabrication in this case, he satisfied Paul’s “stigma-plus” test. Even assuming
    evidence was fabricated and that this fabrication was a constitutional violation, nothing in the
    complaint connects Hodges’s and Paulk’s alleged evidence fabrication to Burke’s press
    events.” Buckley v. Fitzsimmons, 
    20 F.3d 789
    , 797 (7th Cir. 1994), cert. denied,
    513 U.S. 1085
    115 S. Ct. 740
     (1995) (rejecting plaintiff’s arrest as a sufficient
    “plus” under the stigma-plus test). The Seventh Circuit explained that, “the
    Supreme Court [] adopt[ed] a strict separation between the prosecutor’s role as
    advocate and the ancillary events (such as press conferences) surrounding the
    prosecution. It would be incongruous to treat the press conference and the
    prosecution as distinct for purposes of immunity but not for purposes of defining
    the actionable wrong.” Id. at 797-98. The Seventh Circuit concluded that, “a
    plaintiff who uses a ‘stigma plus’ approach to avoid Paul and Siegert must identify
    a ‘plus’ other than the indictment, trial, and related events for which the defendants
    possess absolute prosecutorial immunity.” Id. at 798.
          Therefore Rehberg failed to satisfy Paul’s “stigma-plus” test and fails to
    allege a constitutional claim based on the press statements. This lack of a
    constitutional claim means Burke receives qualified immunity for his press
    statements. The district court erred by not finding Burke immune for the
    allegations in Count 8.
    E.    Count 10 (Conspiracy)
          Count 10 alleges Hodges, Burke, and Paulk engaged in a conspiracy to
    violate Rehberg’s constitutional rights under the First, Fourth, and Fourteenth
           “A person may not be prosecuted for conspiring to commit an act that he
    may perform with impunity.” Jones, 174 F.3d at 1289 (citations omitted). A
    prosecutor cannot be liable for “conspiracy” to violate a defendant’s constitutional
    rights by prosecuting him if the prosecutor also is immune from liability for
    actually prosecuting the defendant. Rowe, 279 F.3d at 1282. And a witness’s
    absolute immunity for testifying prevents any use of that testimony as evidence of
    the witness’s membership in an unconstitutional conspiracy prior to his testimony.
    Id.; Mastroianni, 173 F.3d at 1367.
           Rehberg’s conspiracy allegations do not enlarge what he alleged previously
    in his complaint. This opinion has already explained why Hodges, Burke, and
    Paulk receive absolute or qualified immunity for all of the conduct alleged in
    Counts 6 and 8 and why Hodges receives absolute immunity for the retaliatory
    prosecution in Count 7. Rehberg cannot state a valid conspiracy claim by alleging
    the Defendants conspired to do things they already are immune from doing
           The only portion of Count 7 that remains is Rehberg’s retaliatory
    prosecution claim against Paulk alone. The intracorporate conspiracy doctrine bars
    conspiracy claims against corporate or government actors accused of conspiring
    together within an organization, preventing Rehberg’s claim that Paulk “conspired”
    to initiate a retaliatory prosecution. Dickerson v. Alachua County Commission,
    200 F.3d 761
    , 767 (11th Cir. 2000) (“[I]t is not possible for a single legal entity
    consisting of the corporation and its agents to conspire with itself, just as it is not
    possible for an individual person to conspire with himself”); Denny v. City of
    247 F.3d 1172
    , 1190 (11th Cir. 2001) (applying intracorporate conspiracy
    doctrine to city, city fire chief, and city manager). Rehberg has not alleged that
    Paulk conspired with anyone outside of the District Attorney’s office. See Denny,
    247 F.3d at 1191 (“the only two conspirators identified . . . are both City
    employees; no outsiders are alleged to be involved”). The “conspiracy” occurred
    only within a government entity, and thus the intracorporate conspiracy doctrine
    bars Count 10 against Paulk. The district court erred in not dismissing Count 10.
    F.    Conclusion
          For the reasons explained above, Hodges and Paulk receive absolute
    immunity for Paulk’s grand jury testimony and for the related pre-indictment
    conspiracy conduct alleged in Count 6; Hodges and Paulk received qualified
    immunity for the issuance of subpoenas alleged in Count 6; Hodges receives
    absolute immunity for initiating a retaliatory prosecution as alleged in Count 7;
    Hodges and Paulk both receive qualified immunity for the retaliatory investigation
    alleged in Count 7; Burke receives absolute immunity for the allegations in Count
    8, except for the alleged media statements, for which he receives qualified
    immunity; and Count 10’s conspiracy claim fails. The only surviving claim from
    this appeal is the retaliatory-prosecution claim in Count 7 against Paulk, for which
    the district court correctly denied absolute and qualified immunity. We reverse the
    district court’s order in part and remand this case for the district court to grant the
    Defendants’ motions to dismiss and to enter judgment in favor of all Defendants on
    Counts 6, 7, 8, and 10, except for the retaliatory-prosecution claim against Paulk in
    Count 7.