ORDER AND REASONS

CARL J. BARBIER, United States District Judge.

Before the Court are the Motion to Dismiss filed by the State of Louisiana, Murphy J. Foster, Jr., Richard P. Ieyoub, and Mary Ellen Hunley ("the State defendants") (Rec. Doc. 22), and the Motion to Dismiss filed by the New Orleans District Attorney Harry F. Connick, Assistant District Attorneys Timothy J. McElroy and Melanie Talia, and former Assistant District Attorney Camille Buras ("the D.A. defendants") (Rec. Doc. 36). Plaintiff opposes the motions. The motions were originally set for hearing on briefs on June 21, 2000, but because a review of the pleadings, including the Complaint, reflected deficiencies in the pleadings, the Court directed plaintiff to file a brief alleging with greater specificity facts in support of his claims, including facts necessary to withstand a qualified immunity defense, and continued the instant motion until September 13, 2000, at which point the Court took the matter under advisement. Now, having reviewed the record, the memoranda of counsel, and applicable law, the Court finds that the defendants' motions should be GRANTED, for the reasons that follow.

FACTUAL BACKGROUND

The facts of this case have been set forth in detail in the Court's recent Order and Reasons entered on October 6, 2000; the Court incorporates them by reference and will not restate them fully here. With reference to the State defendants' motion, it is sufficient to know that, accepting the allegations of the plaintiff's complaint as true, the State defendants' role in the case at bar was limited to the processing and forwarding of a request for extradition of the plaintiff from Virginia to Louisiana, premised on an arrest warrant that the Court has already held was based upon probable cause.

With respect to the D.A. defendants, their role was limited to reviewing the plaintiff's file following the issuance of the arrest warrant by a Criminal District Court Judge, recommending extradition, and signing an "Application for Requisition" seeking plaintiff's extradition and forwarding it to the Governor's office. The "Application for Requisition" contains the following language which is noteworthy in connection with the D.A. defendants' motion:

The circumstances of the commission of the alleged crime were that the victim employed Muhammed to make a delivery in the victim's tractor trailer truck to Berkeley, California. Muhammed failed to make the delivery. When victim finally spoke with Muhammed he refused to explain why he did not make the delivery or where the tractor trailer truck was located. At that point Muhammed cut off all contact with the victim.

I aver and allege that (plaintiff], in order to avoid arrest under that charge, has fled from the State of Louisiana and is a fugitive from justice. I have reason to believe, based on reliable information received by me, that [plaintiff] has fled to the State of Virginia. . . .

Application for Requisition, Rec. Doc. 42, Exh. 8.

The Application also contains the following averment: "I, Camille G. Buras, being sworn on my oath say that the allegations and averments in the foregoing application are true." It is signed by defendant Timothy McElroy.

PROCEDURAL HISTORY

The procedural history of this case was also set forth in detail in the Court's October 6, 2000 Order and Reasons. With respect to the movants herein, the prior recitation differs only in that on July 14, 1999 the State defendants were voluntarily dismissed from the Virginia lawsuit, which was subsequently transferred to the Eastern District and docketed as 99-2694; on August 31, 1999, the D.A. defendants were dismissed for insufficiency of process. On December 15, 1999, plaintiff refiled suit in the Eastern District of Louisiana, renaming the State and D.A. defendants in the civil action docketed as number 99-3742. The two actions were consolidated on January 12, 2000; however, due to the dismissals from the Virginia suit, the only pending claims against the State and D.A. defendants are made in case number 99-3742.

Plaintiff has made claims against the State and D.A. defendants under 42 U.S.C. § 1983 alleging that "despite the fact that plaintiff had committed no crime or had not broken any laws under Louisiana law . . . (the defendants] caused an extradition warrant to be issued against plaintiff and caused a fugitive from justice notice to be issued without probable cause." He has also alleged a 42 U.S.C. § 1983 claim against the Governor in his official capacity for failure to supervise and approving allegedly illegal policies and practices which plaintiff claims caused his injuries. He has also sued under 42 U.S.C. § 1985 (3) for conspiracy to violate his civil rights, and under 42 U.S.C. § 1981 for racial discrimination, in addition to pleading several pendent state law claims. Governor Foster, Attorney General Richard Ieyoub, Assistant Attorney General Mary Ellen Hunley, District Attorney Harry Connick, and Assistant District Attorneys Timothy McElroy, Camille Buras, and Melanie Talia have been sued in both their official and individual capacities.

In its order of October 6, 2000, the Court dismissed as to all defendants plaintiff's claims under 42 U.S.C. § 1981 and 1985(3), as well as the state law and 42 U.S.C. § 1983 claim for malicious prosecution. Accordingly, the claims remaining against these defendants are those brought pursuant to 42 U.S.C. § 1983 and the pendent state law claims, with the exception of the previously dismissed malicious prosecution claims.

The State defendants have moved for dismissal based on sovereign immunity, prosecutorial immunity, qualified immunity, and prescription. In his opposition plaintiff appears to concede that the State, and the State defendants in their official capacities, are entitled to absolute sovereign immunity under the Eleventh Amendment, but maintains that they are not entitled to absolute immunity in their individual capacities. Plaintiff also argues that prosecutorial immunity is not available to the state officers in their individual capacities because their actions were administrative or investigatory, rather than prosecutorial, and that his claims were timely filed.

The D.A. defendants have moved for dismissal or summary judgment, on grounds of prosecutorial immunity, prescription, and failure to state a claim, plaintiff opposes their motion, again arguing that the D.A. defendants' roles were not merely prosecutorial, but investigational, and they are therefore not entitled to prosecutorial immunity, and that his claims were timely filed.

DISCUSSION

I. Sovereign Immunity

The Eleventh Amendment bars actions brought against a state in federal court by its own citizens or citizens of another state, absent consent, waiver, or abrogation of the state's sovereign immunity. U.S. CONST. amend. XI;Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355 (1974). This immunity extends to state actors or agents when they are sued for monetary relief in their official capacities, because as the Supreme Court has recognized, "a suit against a State official in his or her official capacity is not a suit against the official, but rather is a suit against the official's office. As such, it is no different from a suit against the State itself." Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304 (1989). This conclusion is buttressed by the fact that if a suit against a state agent acting in his or her official capacity is successful, any damages must be paid from public funds in the state treasury. See Edelman v. Jordan, 415 U.S. at 663, 94 S. Ct. at 1355.

Louisiana has not consented to be sued or waived its immunity from the instant suit. Moreover, the Supreme Court has specifically held that Congress did not abrogate the states' sovereign immunity when it enacted 42 U.S.C. § 1983 (the basis for plaintiff's remaining federal claims against the State defendants). Ouern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139 (1979); see also, Will, 491 U.S. at 71, 109 S.Ct. at 2312 (holding that "neither a State nor its officials acting in their official capacities are "persons" under § 1983"). Accordingly, the Eleventh Amendment bars plaintiff'S claims for monetary relief against the State of Louisiana, and Governor Foster, Attorney General Ieyoub, and Assistant Attorney General Mary Ellen Hunley in their official capacities, a point which plaintiff appears to concede.

Plaintiff argues, correctly, that the Eleventh Amendment provides no bar to his suit against Foster, Ieyoub, and Hunley in their individual capacities. The Supreme Court has determined that because government officials in their individual capacities are persons for purposes of § 1983, they are not entitled to absolute immunity from such suits, and thus may be sued in their individual capacities for actions taken under color of state law that are within their authority and necessary to performance of their government functions. Hafer v. Melo, 502 U.S. 21, 27-28, 112 S.Ct. 358, 362-63 (1991). However, as discussed more fully below, Foster, Ieyoub, and Hunley are otherwise immune from plaintiff's claims.

II. Prosecutorial Immunity

"A prosecutor enjoys absolute immunity for prosecutorial functions 'intimately associated with the judicial phase of the criminal process.'"Dababnah v. Keller-Burnside, 208 F.3d 467, 470 (4th Cir. 2000), quotingImbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995 (1976). While the prosecutorial immunity is necessarily broad, it does not extend to scenarios in which a prosecutor acts in an investigatory, administrative, ministerial or other role not tied to the judicial process. BuckleY V. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606 (1993). However, a prosecutor's role in seeking extradition is considered to be within the prosecutor's "advocate's role," and intimately associated with the judicial phase of the criminal process, rather than investigatory, administrative, or ministerial. See, e.g., Dababnah, 208 F.3d at 471-72, and cases cited therein. As the numerous courts so holding have reasoned, this is because one of the most important duties of a prosecutor is to ensure the presence of the defendant to stand trial. See id.

A. State defendants

In the case at bar, a review of the allegations against the State defendants indicates that their roles were limited to processing and facilitating the' extradition of plaintiff. Because they conducted only extradition-related activities, under Imbler v. Pachtman and its progeny, the State defendants sued in their individual capacities are immune from suit. Moreover, the immunity is not limited to the § 1983 claims, but insulates them from the state law claims as well. The Louisiana Supreme Court has explicitly recognized the availability of prosecutorial immunity from state law claims, stating: "While the decision in Imbler is not binding on this court because it dealt with a federal cause of action rather than a state claim . . . the sweep of the opinion specifically takes in and approves the common-law rule of absolute immunity for a prosecutor acting within the scope of his duties. . . . [w]e note that we have harmonized our own state immunity rules with federal immunity principles in the past." Knapper v. Connick, 681 So.2d 944, 947 (La. 1996) Accordingly, because the State and the state officials in their official capacities are entitled to absolute Eleventh Amendment immunity from suit, and the state officials in their individual capacities enjoy an absolute prosecutorial immunity from suit, all remaining claims against them must be dismissed, and the Court need not reach the question of prescription or qualified immunity with respect to the State defendants.

B. D.A. defendants

As discussed above, the United States and Louisiana Supreme Courts have recognized that a District Attorney and Assistant District Attorneys are entitled to absolute prosecutorial immunity for those actions which are prosecutorial, as opposed to investigatory, administrative, or ministerial in nature. See Knapper, 681 So.2d at 950 (citing state and federal authorities). Otherwise, only a qualified immunity is afforded.Id. Because the actions undertaken by the D.A. defendants were slightly broader than those of the State defendants (who merely processed the extradition request), "a functional analysis of the role [the] prosecutor[s] were fulfilling when the alleged 'misconduct occurr[ed] is the touchstone to determining the type of immunity available." Id.;Buckley, 509 U.S. 259, 113 S.Ct. 2606.

With respect to Harry Connick and Melanie Talia, plaintiff has not alleged any facts suggesting that their roles were anything but prosecutorial. Harry Connick's role was supervisory, and Melania Talia merely reviewed the file and determined that extradition was appropriate, clearly an extradition-related function insulating her from immunity under Dababnah.

However, Timothy McElroy signed the Application for Requisition on behalf of Camille Buras, including an averment in swearing to the truth of the facts contained in the Application. Plaintiff, in his opposition, has argued that "[w]hen Camille Buras and/or Tim McElroy attested to the facts in the Application for Requisition as being true, they became fact witnesses, roles which are clearly outside the role of prosecutorial functions." Rec. Doc. 42, 5. In fact, case law supports this view.

In Kalina v. Fletcher, the United States Supreme Court considered whether a prosecutor was entitled to immunity from claims derived from her having filed three documents: an unsworn information charging the § 1983 plaintiff with burglary; an unsworn motion for an arrest warrant; and a document captioned "Certification for Determination of Probable Cause," which contained a summary of the evidence supporting the charge and in which she swore to the truth the facts alleged, under penalty of perjury. ___ U.S. ___, 118 S.Ct. 502 (1997). The Supreme Court found that the prosecutor was entitled to immunity from claims premised on the filing of the first two documents, but not on the third, since she personally attested to the truth of the averments in the certification. Because "testifying about facts is the function of the witness, not of the lawyer," the Supreme Court found that in preparing and filing the third document, the prosecutor was not engaging in a prosecutorial function, and thus the immunity did not extend to claims related to that activity. 118 S.Ct. at 510.

In the instant case, Timothy McElroy signed an averment on behalf of Camille Buras in connection with the Application for Requisition, attesting to the truth of the underlying facts upon which probable cause was based. While the Court recognizes that the present case is factually distinguishable from Kalina, in that the Certification Kalina filed was a predicate to a finding of probable cause, whereas in this case, the Court has found that probable cause existed before McElroy signed the Application for Requisition, because a criminal proceeding may not be initiated or continued without probable cause, the Kalina court's reasoning is applicable. See Miller v. East Baton Rouge Parish Sheriff's Dept., 511 So.2d 446, 452 (La. 1987). Accordingly, Buras and McElroy do not enjoy absolute immunity from suit for plaintiff's claims arising from the preparation and filing of the Application for Requisition.

III. Qualified Immunity

While prosecutors do not enjoy absolute prosecutorial immunity from claims premised on non-prosecutorial activities, they are nonetheless entitled to qualified immunity from such suits. BuckleY v. Fitzimmons, 509 U.S. 259, 113 S.Ct. 2606.

Qualified immunity affords protection from civil liability for government officials performing discretionary functions, when their conduct violates no "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). The Supreme Court has established a two-pronged test for qualified immunity. First, a district court must determine whether, under current law, a plaintiff has alleged a constitutional violation at all. Siegert v. Gilley, 500 U.S. 226, 231-32, 111 S.Ct. 1789 (1991). The second prong consists of two subparts: a court must determine whether the right allegedly violated was "clearly established" at the time of the action plaintiff complains of; and if so, whether the defendant's conduct was objectively unreasonable in view of clearly established law. Id.

Plaintiff has alleged that his arrest and subsequent extradition pursuant to a Louisiana warrant for theft violated his constitutional rights guaranteed by the 4th, 5th, 8th, and 14th amendments to the Constitution. If adequately alleged, such claims would constitute Constitutional violations. Further, the Court will assume for the sake of argument that the rights allegedly violated were clearly established and fall within the ambit of the cited amendments. Even so, the Court cannot find that Buras and McElroy acted unreasonably under the circumstances. To the contrary, the Court has already found that probable cause existed for plaintiff's arrest, noting that the facts recited in the Narrative section of the police report upon which the warrant was based were in fact true, and that the undisputed facts of this case indicate that plaintiff had committed a crime. Nothing in the record suggests that these facts were any less true at the time Buras and McElroy prepared the Application for Requisition. Buras and McElroy relied on information provided to them by the New Orleans police department, and completed the Application for Requisition based on their understanding of the facts, namely, that

the victim employed Muhammed to make a delivery in the victim's tractor trailer truck to Berkeley, California. Muhammed failed to make the delivery. When victim finally spoke with Muhammad he refused to explain why he did not make the delivery or where the tractor trailer truck was located. At that point Muhammed cut off all contact with the victim.

Rec. Doc. 42, Exh. 8.

Plaintiff cannot seriously dispute the accuracy of this account, except that he has argued in some places that the contents of the tractor trailer were eventually delivered to their destination, and that the tractor trailer was eventually located by its owners. However, even if he is correct on this point, as discussed in the previous order, the distinction between theft and unauthorized use of a movable does not alter the result in this case. Whichever of those felonies plaintiff committed, officials in Louisiana were not unjustified in believing to a "fair probability" that a crime had occurred, and in fact, one had. See Piazza v. Mayne, 217 F.3d 239, 245-46 (5th Cir. 2000). Further, Buras and McElroy were not unreasonable in finding, under all the circumstances, that probable cause continued to exist at the time the Application for Extradition was prepared. Accordingly, they are entitled to qualified immunity from plaintiff's § 1983 suit, as well as from the state law claims. See Knapper, 681 So.2d at 947; see also, Moresi v. Dept. of Wildlife Fisheries, 567 So.2d 1081 (La. 1990)

IV. Prescription

Because the State defendants are absolutely immune from suit by virtue of the doctrines of sovereign and prosecutorial immunity, the Court does not reach their prescription argument.

With respect to the D.A. defendants, some of whom enjoy only a qualified immunity, the Court finds that all remaining claims against them have prescribed. The applicability of the one-year statute of limitations to all of plaintiff's state and federal claims, with the exception of those for malicious prosecution, has been set forth in the Court's October 6, 2000 Order and Reasons. Likewise, it is established that the limitations period runs from the date plaintiff's claims accrued, and a cause of action accrues when a plaintiff has actual or constructive knowledge of the injury he alleges to have been caused by the defendant. Helton v. Clements, 832 F.2d 332, 334 (5th Cir. 1986)

All of the alleged illegal activities by the D.A. defendants took place on or before April 15, 1998, when Timothy McElroy signed the Application for Requisition on behalf of Camille Buras. If not previously aware of these actions, plaintiff learned of them not later than May 7, 1998, the date he received notice that he was to be extradited to Louisiana. Accordingly, unless the prescriptive period was interrupted or tolled, plaintiff must have filed suit against the District Attorneys in a court of competent jurisdiction and venue not later than May 7, 1999.

Plaintiff filed suit in the U.S. District Court for the Eastern District of Virginia on March 8, 1999. However, he did not properly serve any of the D.A. defendants, and accordingly, they were dismissed for insufficient service on August 31, 1999. The D.A. defendants argue that because the suit was not properly served, nor filed in a court of competent venue, it did not interrupt prescription against the D.A. defendants, and because Plaintiff did not refile suit against the D.A. defendants again until December 15, 1999, well beyond the May 7, 1999 deadline, the action is time-barred.

While the Virginia court made an explicit finding that service upon the D.A. defendants was insufficient, the transfer was accomplished by a stipulated order that contained no finding that venue was improper. Accordingly, it is not a foregone conclusion that Louisiana Civil Code article 3462, which provides that an action commenced in a court of improper venue does not interrupt prescription against defendants who have not been served, applies in this case. However, this Court need not explore whether venue was proper as to these defendants in the Virginia lawsuit, because even crediting plaintiff with a period of interrupted prescription for the time during which the Virginia suit was pending, his suit against the D.A. defendants, filed on December 5, 1999, was too late.

"An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending." La. Civ. Code, art. 3463 (emphasis added). In this case, plaintiff's cause of action accrued on May 7, 1998. By the time he filed the Virginia lawsuit, on March 8, 1999, 305 days had elapsed. Assuming for the sake of argument that venue in the Eastern District of Virginia was proper, that suit interrupted prescription against the D.A. defendants until August 31, 1999, when the suit against them was dismissed for insufficient service. On September 1, 1999, the prescriptive period began to run anew. La. Civ. Code. 3463. On December 15, 1999, when plaintiff filed suit a second time in this district, an additional 106 days had run. Thus, 411 days elapsed — more than the one-year prescriptive period provided by law — before plaintiff filed the instant suit against defendants. Accordingly, notwithstanding other defects in his suit, it is not timely as to the D.A. defendants and should be dismissed as prescribed. Therefore;

IT IS ORDERED that the State defendants' Motion to Dismiss (Rec. Doc. 22) should be and is hereby GRANTED, and plaintiff's claims against the State of Louisiana and Murphy J. Foster, Jr. in his official capacity should be and are hereby DISMISSED; plaintiff's claims against Murphy J. Foster, Jr. in his individual capacity, and Richard Ieyoub and Mary Ellen Hunley in their official and individual capacities, should be and are hereby DISMISSED with prejudice; IT IS FURTHER ORDERED that the D.A. defendants' Motion to Dismiss (Rec. Doc. 36) should be and is hereby GRANTED, and plaintiff's claims against Harry Connick, Timothy McElroy, Camille Buras, and Melanie Talia, in their official and individual capacities, should be and are hereby DISMISSED with prejudice.