MEMORANDUM AND ORDER

G. THOMAS VANBEBBER, Senior District Judge

Plaintiffs Dale E. McCormick and Curtis A. Kastl II, proceeding pro se, bring this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiffs allege that Defendants, Lawrence, Kansas police officers; the City of Lawrence; and Mark Knight, Assistant District Attorney, violated their First, Fourth, Fifth, and Fourteenth Amendment rights during and after Plaintiffs' arrests in July of 2002 and at various other times. Defendant Knight has now moved to dismiss the claims against him based on prosecutorial immunity (Doc. 25). For the following reasons, the court grants Defendant Knight's motion. Defendant Knight is dismissed from the case.

I. STANDARDS FOR JUDGMENT

Defendant Knight moves to dismiss Plaintiffs' complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Defendant also attaches outside materials in support of his motion and asks the court to consider such materials. Plaintiffs argue that the court should review Defendant Knight's motion under the standard for summary judgment, and ask that the court consider Plaintiffs' evidence submitted in support of their motion for summary judgment (Doc. 20).

The court determines that Defendant Knight's motion need not be converted to a motion for summary judgment. When documents central to a plaintiffs complaint are referred to in the complaint, the court may consider them as part of a motion to dismiss if the parties do not dispute the documents' authenticity. County of Santa Fe. N.M. v. Pub. Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002) (citation omitted). "If the rule were otherwise, a plaintiff with a deficient claim could survive a motion to dismiss simply by not attaching a dispositive document upon which the plaintiff relied." GFF Corp. v. Associated Wholesale Grocers. Inc., 130 F.3d 1381, 1385 (10th Cir. 1997).

Defendant Knight has attached the following documents to his motion to dismiss:the complaints signed by Defendant Knight in Plaintiffs' state court cases; the affidavits of probable cause signed by Lawrence Police Officer Mik Shanks in Plaintiffs' state court cases; probable cause warrants signed by Judge Peggy Kittle; a summons to Defendant Knight; and copies of unpublished decisions.

Plaintiffs' complaint provides, in relevant part:

COUNT XIH Unreasonable Seizure Claim

. . . .

On or about 7/14/02, Mark Knight and Mik Shanks swore a "criminal" complaint and probable cause affidavit, respectively, which caused plaintiffs to be seized as aforesaid to answer in the aforesaid criminal cases, doing so under color of law, without probable cause and through the use of an affidavit and sworn complaint that failed on their faces to establish probable cause to believe any crime had been committed, thereby invading plaintiffs' right to be free from unreasonable seizures, provoking plaintiffs to wrath and otherwise injuring plaintiffs as aforesaid.

COUNT XTV Sec. 1983 Retaliatory, Vindictive or Harassing Prosecution Claim

. . . .

Said Knight and Shanks did retaliate against plaintiff[s'] exercise of First Amendment rights by filing defective "criminal" complaints and probable cause affidavits against plaintiffs as aforesaid, doing so under color of law, without probable cause and through the use of an affidavit and sworn complaint that failed on their faces to establish probable cause to believe any crime had been committed. . . .

As is evident by the above-quoted passages, the complaints and probable cause affidavits are specifically referenced in Plaintiffs' complaint and are central to Plaintiffs' claims. Furthermore, the authenticity of the documents is undisputed. The court therefore determines that the complaints and affidavits may be considered as part of Defendant Knight's motion to dismiss.

The warrants and summons similarly could be referenced by the court without converting Defendant Knight's motion, but for simplicity's sake, the court elects not to consider them in ruling on Defendant Knight's motion. They are unnecessary to the court's decision.

Finally, attachment of unpublished decisions does not mandate the conversion of a motion to dismiss to a motion for summary judgment. For these reasons, the court reviews Defendant Knight's motion under a Rule 12(b)(6) motion to dismiss standard and declines to consider evidence submitted by Plaintiffs in support of their motion for summary judgment at this time.

A Rule 12(b)(6) motion to dismiss will be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling him to relief under his theory of recovery. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true."Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). The court must view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed. See id.; Fed.R.Civ.P. 8(f). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),overruled on other grounds by Harlow v. Fiztgerald, 457 U.S. 800 (1982).

II. FACTUAL BACKGROUND

The following facts are taken from Plaintiffs' complaint and undisputed documents central to their claim and referenced in the complaint.

On July 13, 2002, Plaintiffs were arrested by Lawrence Police Officer Mik Shanks as a result of a series of events laid out in a previous opinion of this court. Plaintiffs allege that Officer Shanks lacked probable cause to believe they violated any law at the time of their arrest.

Plaintiffs allege that on July 14, 2002, Defendant Knight, acting without probable cause, filed sworn criminal complaints against them in Douglas County District Court. The complaints were accompanied by probable cause affidavits signed by the Investigating/Reporting Officer Shanks. Defendant Knight did not sign the probable cause affidavits.

Plaintiffs allege that Defendant Knight's actions caused Plaintiffs to be seized and haled into court from July 14, 2002 through April 8, 2003, when their cases were dismissed for lack of jurisdiction. They claim that Defendant Knight's actions resulted in an unreasonable seizure in violation of the Fourth Amendment and that he took such actions in retaliation for Plaintiffs' exercise of their First Amendment rights.

III. DISCUSSION

It is well-established that under 42 U.S.C. § 1983, prosecutors are immune from liability for their decisions to prosecute criminal cases.Imbler v. Pachtman, 424 U.S. 409, 421 (1976); Dohaish v. Tooley, 670 F.2d 934, 937-38 (10th Cir. 1982). As long as prosecutors are functioning as an advocate of the state at the time of their actions, they are entitled to absolute immunity from suit. Buckley v. Fitzsimmons, 509 U.S. 259, 273-74 (1993). They are immune even when acting maliciously. Lerwill v. Joslin, 712 F.2d 435, 441 (10th Cir. 1983). But a prosecutor will not be entitled to absolute immunity if he is performing "administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings. . . ." Buckley, 509 U.S. at 273 (citing Burns v. Reed, 500 U.S. 478, 494-96 (1991)). This functional distinction exists because absolute prosecutorial immunity "is not grounded in any special 'esteem for those who perform these functions, and certainly not from a desire to shield abuses of office, but because any lesser degree of immunity could impair the judicial process itself'"Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (quoting Malley v. Briggs, 475 U.S. 335, 342 (1986)). "[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question." Burns, 500 U.S. at 486.

Plaintiffs advance two arguments why Defendant Knight is not entitled to absolute immunity. First, they allege that he was not acting as an "advocate of the state" entitled to prosecutorial immunity because he lacked probable cause to bring charges. Second, they allege that he should not receive prosecutorial immunity because he was acting as a "complaining witness," and not as an advocate. The court addresses each of these arguments in turn.

A. Lack of Probable Cause

Plaintiffs first argue that the determining factor as to whether Defendant Knight was functioning as an advocate is whether he had probable cause to bring charges. Plaintiffs cite Buckley v. Fitzsimmons in support of their argument: "A prosecutor neither is, nor should he consider himself to be, an advocate before he has probable cause to have anyone arrested." 509 U.S. at 274; see also id. at 280-81 (Scalia, J., concurring) (quoting 509 U.S. at 274-75) ("It is certainly in accord with the principle to say that prosecutors cannot 'properly claim to be acting as advocates' before they have probable cause to have any one arrested.'. . ."). Even assuming for purposes of this Memorandum and Order that Defendant Knight lacked probable cause to believe that Plaintiffs had violated the law, and knew that he lacked probable cause, Plaintiffs' argument fails.

The quotes from Buckley that Plaintiffs cite must be read in context. The decision as a whole emphasizes that the "functional approach" is to be used when evaluating whether a prosecutor is entitled to absolute immunity. A footnote following the sentence quoted by Plaintiffs makes it clear that Plaintiffs' interpretation of the quote is not what the Court intended. The Court notes:

there is no "true anomaly" . . . in denying absolute immunity for a state actor's investigative acts made before there is probable cause to have a suspect arrested just because a prosecutor would be entitled to absolute immunity for the malicious prosecution of someone whom he lacked probable cause to indict. That criticism ignores the essence of the function test. The reason that lack of probable cause allows us to deny absolute immunity to a state actor for the former function (fabrication of evidence) is that there is no common-law tradition of immunity for it, whether performed by a police officer or prosecutor. The reason that we grant it for the latter function (malicious prosecution) is that we have found a common-law tradition of immunity for a prosecutor's decision to bring an indictment, whether he had probable cause or not.

B. Complaining Witness

Plaintiffs next argue that Defendant Knight was not acting as an advocate because he was acting as a "complaining witness" when he signed the complaints under oath. In support of this argument, Plaintiffs citeKalina v. Fletcher, 522 U.S. at 130 ("Testifying to the facts is a function of a witness, not a lawyer."); Roberts v. Cling, 144 F.3d 710, 711 (10th Cir. 1998) ("[T]estifying to the truth of the statements contained within the criminal complaint [was] a role which would deny his conduct the protection of absolute immunity under Kalina, . . ."); and Van Deelen v. City of Eudora, 53 F. Supp.2d 1223, 1227 (D. Kan. 1999) (same). The court determines that all three cases are distinguishable from the instant case, as is the most recent case accepting Plaintiff McCormick's argument, McCormick v. City of Lawrence, 253 F. Supp.2d 1172, 1205 (D. Kan. 2003).

In Kalina, the Supreme Court determined that a prosecutor was not entitled to absolute immunity because she executed a "Certification for Determination of Probable Cause," which summarized the evidence supporting a motion for an arrest warrant. 522 U.S. at 129-31. In the certification, "[s]he personally vouched for the truth of the facts set forth in the certification under penalty of perjury." Id. at 121. In doing so, she essentially testified to facts to which a witness could have testified. Id. at 129-30.

Likewise, in Roberts, the Tenth Circuit assumed without deciding that the defendant, an investigator for the prosecutor's office, "acted as a complaining witness in testifying to the truth of the statements contained within the criminal complaint. . . ." 144 F.3d at 711. The investigator swore to the facts supporting the criminal complaint. Id. He also personally investigated the allegations involved in the case. Id. He lost his immunity not merely because the complaint was sworn, but because he was performing the function of a fact witness by setting forth the facts of his investigation in the criminal complaint. Id.

In Van Deelen, the plaintiff alleged that the prosecutor swore in a criminal complaint that he had made a determination that probable cause existed and that he had made an independent determination that criminal activity had occurred. 53 F. Supp.2d at 1229. Based on Kalina and Roberts, Judge Crow held that "[q]ualified immunity [was] the extent of [the defendant's] protection from suit for vouching to the truth of the criminal complaint." Id. at 1230. It appears to the court that the Van Deelen defendant attached his own affidavit to the criminal complaint instead of merely filing the complaint. Id. at 1229.

Finally, in McCormick, Judge Lungstrum also determined that a prosecutor was not entitled to absolute immunity. 253 F. Supp.2d at 1206. At the time, Judge Lungstrum apparently had before him only the allegations in the plaintiffs' complaint and not the contents of the criminal complaint and its attachments. See id. He was left to assume without deciding that the prosecutor had acted as a complaining witness.Id.

The above-cited cases are distinguishable from the instant case. First and foremost, Defendant Knight did not testify to facts. The complaints that he signed under oath stated as follows:

THAT ON or about the 13th day of July, 2002, in the County of Douglas, State of Kansas, one [DALE E MCCORMICK/CURTIS A KASTL II], did then and there unlawfully and knowingly obstruct a person authorized by law, to wit: Scott Hofer, an officer of the Lawrence Police Department in the discharge of an official duty, to wit: investigation of a traffic violation, all in violation of K.S.A. 21-3808. Contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State of Kansas.

The complaints were submitted with Officer Shanks's affidavits, which contained the supporting factual allegations for the charges. The complaints filed by Defendant Knight contain no allegations of specific facts. They are jurisdictional in nature and simply serve as charging documents, documents whose function is to commence the case and inform a defendant of what crime he has been charged and its elements. State v. Schumway, 50 P.3d 89, 99 (Kan. 2002) (citation omitted); Henderson v. Schenk, 631 P.2d 246, 248 (Kan.App. 1981). Defendant Knight was not functioning as a witness. He was not present during Plaintiffs' arrests and did not investigate the event. He is not listed as a witness on the complaints.

For these reasons, the instant case is distinguishable from the cases cited by Plaintiffs. Because the court can ascertain from the complaints and affidavits that Defendant Knight was functioning as an advocate and not as a complaining witness, he is entitled to prosecutorial immunity for his actions. Although the parties' briefs also discuss qualified immunity, the court need not address it here as Defendant Knight is already entitled to dismissal from the case.

IT IS, THEREFORE, BY THE COURT ORDERED that Defendant Knight's motion to dismiss (Doc. 25) granted. Defendant Knight is dismissed from the case.

Copies or notice of this order shall be transmitted to counsel of record and pro se Plaintiffs.

IT IS SO ORDERED.