Robert Ward CADY, Plaintiff-Appellant, v. ARENAC COUNTY and Curtis G. Broughton, individually and in his official capacity as Arenac County Prosecutor, Defendants-Appellees, 574 F.3d 334

GILMAN, J., delivered the opinion of the court, in which ZOUHARY, D.J., joined. MARTIN, J. (pp. 345-49), delivered a separate concurring opinion. OPINION RONALD LEE GILMAN, Circuit Judge. This case raises the question of whether Robert Ward Cady’s constitutional rights were violated when the Arenac County Prosecutor required Cady, as a condition for dismissing the criminal assault and battery charges pending against him, to enter into an agreement to temporarily refrain from filing a civil lawsuit against the parties with whom he had had a physical altercation. The district court granted

summary judgment in favor of both Arenac County and the Arenac County Prosecutor, concluding that the prosecutor’s actions were protected by absolute prosecutorial immunity. Although we do not fully agree with the district court’s analysis, we AFFIRM its judgment for the reasons set forth below. I. BACKGROUND A. Factual background On the evening of September 4, 2004, police officers were dispatched to the property of Robert Seaman in response to a call claiming that a person was being restrained after he was observed breaking into vehicles. Seaman was having a Labor Day party that evening at his residence.

The officers arrived to find Cady being assisted in getting up from the ground. According to the police report, the officers received conflicting accounts about what had taken place. Cady first claimed that he was hit by a water balloon coming from the Seaman property as he drove by and that, when he sought to investigate, individuals from the Seamans’ party assaulted him.

He then changed his story and claimed that he stopped at what he believed was a friend’s house and that individuals “jumped him.” The officer interviewing Cady noted that Cady emitted “the odor of intoxicants.” This caused the officer to administer a breathalyzer test, which showed that Cady had a blood-alcohol level of 0.101. In contrast, the four individuals at the Seamans’ Labor Day party (Robert Seaman, Marcia Seaman, Scott Diebold, and Thomas Kolczynski) told the police that Cady came onto the Seaman property and assaulted Robert Seaman.

After Robert called out for help, the other three at the party came to assist him. They restrained Cady until the police arrived. A fifth individual, Robert Dewar, told one of the officers that while Cady was being held down, he saw Diebold punching Cady in the head “about five times.” The police then re-interviewed Diebold, a corrections officer based in New York, and further questioned his account of the events. They ultimately discredited Dewar’s story and told him to leave the property because he “was getting everyone excited.” Several of the individuals involved, including Cady, appeared to have injuries.

During his deposition, Assistant Prosecutor Vollbach described Cady as having gotten “the worst of the tussle.” After the officers evaluated these conflicting accounts, Cady was arrested and taken into custody. He spent the night in jail and was released the following afternoon, having been issued a citation and charged on a “weekend warrant” with two state misdemeanor counts of assault and battery.

In April 2005, Cady entered into a Deferred Prosecution Agreement (DPA) with Assistant Prosecutor Vollbach, which provided in pertinent part as follows: The Defendant, Robert Ward Cady, voluntarily and understandably agrees to the dismissal of the current charges pending against him: two counts of Assault and Battery, subject to the following conditions: 1. During the next six (6) months, I will demonstrate my desire to live within the law by not violating any statute of the State of Michigan requiring criminal intent. 2.

During the next six (6) months, I will not be arrested for any criminal acts or traffic violations more serious than a civil infraction. 3. If Defendant Cady pursues any civil claims or remedies against the victims or other participants pertaining to the incidents relative to this matter, People will reissue charges. I, Robert Ward Cady, agree to the above terms and conditions and understand that if I violate any of the terms of this agreement during the next six (6) months, the Prosecution will re-issue the current charges pending against me.

Cady signed the DPA, but later claimed that he did so “with the understanding that the provision was unconstitutional.” He did not, however, communicate this belief to the Arenac County Prosecutor’s Office. Assistant Prosecutor Vollbach acknowledged during his deposition that the Prosecutor’s Office had never before executed a DPA containing similar waiver-of-civil-claims language, but said that he had done so to allow a six-month “cooling-off’ period between the parties to the altercation.

Less than five months later, Cady nonetheless filed a civil lawsuit against the Seamans, Diebold, and Kolzcynski in the county circuit court. The complaint alleged assault, battery, and negligence arising out of the events of September 4, 2004. Upon learning of the civil lawsuit, Arenac County Prosecutor Curtis Broughton and Assistant Prosecutor Vollbach decided to reissue the criminal charges against Cady. Cady pled not guilty, and was ultimately acquitted by a jury on all charges. B.

Procedural history In March 2007, Cady filed a claim pursuant to 42 U.S.C. § 1983 against Arenac County and County Prosecutor Broughton in the United States District Court for the Eastern District of Michigan. The complaint alleged that the defendants violated Cady’s constitutional rights under the Petition Clause of the First Amendment by including the waiver-of-civil-claims language in the DPA. After discovery was completed, the district court heard oral arguments relating to the defendants’ Motion for Dismissal and

Summary Judgment. It later issued a memorandum opinion in favor of both defendants. The court found that because Broughton is a “policymaker with final decision-making authority,” Cady had stated a claim that met the requirements for suing Arenac County as set forth in Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). It also concluded that, based upon the factors laid out in Justice O’Connor’s concurring opinion in Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987), and substantially adopted by the Sixth Circuit in Coughlen v.

Coots, 5 F.3d 970 (6th Cir.1993), the DPA’s release-dismissal provision did not serve the public interest and was unenforceable due to “prosecutorial overreaching.” Nonetheless, the district court held that Cady’s claim was barred by absolute prosecutorial immunity. The court identified the following three acts of the prosecutor as being challenged by Cady: (1) the issuance of charges against Cady, (2) the inclusion of the waiver-of-civil-claims language in the DPA, and (3) the prosecution of Cady. Citing Imbler v.

Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the court concluded that all three acts are subject to absolute prosecutorial immunity, a doctrine that protects prosecutors from claims brought under 42 U.S.C. § 1983. The court therefore granted

summary judgment in favor of both defendants and dismissed Cady’s complaint. Cady timely appealed. II. ANALYSIS A. Standard of review We review de novo a district court’s grant of

summary judgment. Allen v. Highlands Hosp. Corp., 545 F.3d 387, 393 (6th Cir.2008).

Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for

summary judgment, the district court must construe all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). B.

Immunity issues “An absolute immunity defeats a suit at the outset, so long as the official’s actions were within the scope of the immunity.” Imbler, 424 U.S. at 419 n. 13, 96 S.Ct. 984. If absolute immunity applies to the defendants, we do not need to reach the substantive issues such as whether the DPA is unenforceable under the factors set out in Rumery. See Imbler, 424 U.S. at 419 n. 13, 96 S.Ct. 984.

Because Cady brought suit against County Prosecutor Broughton in both his individual and official capacities, we will separately analyze the issue of whether this immunity applies to Broughton in his individual capacity, to Broughton in his official capacity, and to Arenac County. “Whether absolute immunity protects a defendant from liability under 42 U.S.C. § 1983 is a legal question that this Court reviews de novo.” Gregory v. City of Louisville, 444 F.3d 725, 737 (6th Cir.2006) (citation omitted). a.

Broughton in his individual capacity The Supreme Court in Imbler held that “a state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution” was not amenable to suit under § 1983. 424 U.S. at 410, 96 S.Ct. 984. This rationale, however, did not extend to a prosecutor whose “responsibility ... cast him in the role of an administrator or investigative officer rather than that of advocate.” Id. at 430-31, 96 S.Ct. 984.

The district court identified three types of actions taken by the prosecutor: (1) the issuance of charges against Cady, (2) actions connected with the DPA, and (3) the prosecution of Cady at trial. Under Imbler, the issuance of charges against Cady and the prosecution of those charges clearly fall “within the scope of [the prosecutor’s] duties in initiating and pursuing a criminal prosecution.” See id. at 430, 96 S.Ct. 984; see also Burns v. Reed, 500 U.S. 478, 490-91, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991).

This leaves the key question of whether Broughton’s actions in connection with the waiver-of-civil-claims language in the DPA also fall within the scope of his duties as an advocate.

No case within this circuit has decided that question. “[Pjrosecutors are absolutely immune from liability under § 1983 for their conduct ... insofar as that conduct is intimately associated with the judicial phase of the criminal process.” Burns, 500 U.S. at 486, 111 S.Ct. 1934 (citation and internal quotation marks omitted). “Since the [Supreme] Court’s decision in Imbler, courts have taken a functional approach to absolute immunity.” Spurlock v.

Thompson, 330 F.3d 791, 797 (6th Cir.2003). “The analytical key to prosecutorial immunity ... is advocacy — whether the actions in question are those of an advocate.” Skinner v. Govorchin, 463 F.3d 518, 525 (6th Cir.2006) (citations and internal quotation marks omitted). “If the challenged actions of the prosecutor were not performed in his role as advocate, if they do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings, then only qualified immunity applies.” Id.

But courts will bar § 1983 suits arising out of even unquestionably illegal or improper conduct by the prosecutor so long as the general nature of the action in question is part of the normal duties of a prosecutor. Imbler, 424 U.S. at 413, 430, 96 S.Ct. 984 (holding that a prosecutor accused of knowingly presenting false testimony at trial is protected by absolute immunity); Jones v.

Shankland, 800 F.2d 77, 80 (6th Cir.1986) (holding that a prosecutor’s alleged “use of perjured testimony!,] the non-disclosure of exculpatory information!,] ... conflict of interest problems [,] and ... spy allegations” are all “related to the acts of an advocate and thus come within the area of prosecutorial immunity”); Heidelberg v. Hammer, 577 F.2d 429, 432 (7th Cir.1978) (holding that a prosecutor is absolutely immune from a suit claiming that he destroyed and falsified evidence). In its order granting

summary judgment, the district court concluded that the use of the DPA was itself “integral to the judicial process of adjudicating Plaintiffs guilt or innocence.” The court based its conclusion on the fact that a Michigan statute grants the county court the authority to permit such “release-dismissal agreements” and to grant the prosecution’s motion for a nolle prosequi. See Mich. Comp. Laws § 771.1(2). This analysis, however, strikes us as inapposite insofar as it focuses on the action and authority of the county court rather than the conduct of the county prosecutor.

No Sixth Circuit case squarely addresses the question of whether entering into a release-dismissal agreement like the DPA in the present case is conduct “intimately associated with the judicial phase of the criminal process.” But numerous cases from this circuit, following the analysis of the Supreme Court in Rumery, have established the validity of release-dismissal agreements as “legitimate criminal justice tools.” Rumery, 480 U.S. at 393, 107 S.Ct. 1187 (holding that the release-dismissal agreement entered into by the plaintiff and the prosecution was enforceable); see also MacBoyle v.

City of Parma, 383 F.3d 456, 461 (6th Cir.2004) (same); Coughlen v. Coots, 5 F.3d 970, 975 (6th Cir.1993) {“Rumery indicates that under ordinary circumstances it is not improper for prosecutors to obtain releases as a part of a ... dismissal of criminal charges.”). The Rumery factors, as adopted by the Sixth Circuit, require courts to consider, among other things, whether a release-dismissal agreement “was executed under judicial supervision.” Rumery, 480 U.S. at 401-02, 107 S.Ct. 1187 (O’Connor, J., concurring); Burke v.

Johnson, 167 F.3d 276, 285 (6th Cir.1999) (holding that a release-dismissal agreement “executed under judicial supervision” counted in favor of the agreement’s enforceability (citation and internal quotation marks omitted)). Although these cases are concerned with whether a release-dismissal agreement is enforceable, their conclusions indicate that entering into such an agreement with a criminal defendant is one way in which a prosecutor may choose to resolve a case in his “role as advocate” for the state.

Moreover, the DPA in this case bears a resemblance to plea bargains that prosecutors routinely enter into with criminal defendants. Conduct associated with plea bargains has long been held by this court to be “so intimately associated with the prosecutor’s role as an advocate of the State in the judicial process” as to warrant absolute immunity. Cole v. Smith, No. 97-5964, 1999 WL 685940, at *2, 1999 U.S.App. LEXIS 20353, at *6 (6th Cir. Aug. 24, 1999); see also Roberts v. Johnson, No. 86-5952, 1987 WL 36391, at *1, 1987 U.S.App. LEXIS 2308, at *2-3 (6th Cir.

Feb. 17, 1987) (holding that actions taken in connection with a plea bargain were “taken within the scope of the prosecutor’s duties” and therefore subject to absolute immunity); Doe v. Phillips, 81 F.3d 1204, 1210 (2d Cir.1996) (“[T]he negotiation of a plea bargain is

an act within a prosecutor’s jurisdiction as a judicial officer.”); Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1492 (10th Cir.1991) (holding that absolute immunity attaches to plea bargaining activity “due to its intimate association with the judicial process”). In the instant case, the DPA was followed by Assistant Prosecutor Vollbach’s motion for nolle prosequi. At least one other circuit has held that a decision to move for nolle prosequi is within the bounds of absolute immunity. Brooks v.

George County, 84 F.3d 157, 168 (5th Cir.1996) (holding that a prosecutor’s act “of requesting that the court enter an order of nolle prosequi ” of the defendant’s criminal charges was “intimately associated with the judicial phase of the criminal process” (citation and internal quotation marks omitted)). But Cady argues that County Prosecutor Broughton should not receive absolute immunity because Broughton was not carrying out his duty as a prosecutor when he authorized Assistant Prosecutor Vollbach to enter into the DPA.

Cady insists that Broughton was instead “improperly acting solely as the advocate for the alleged victims (and not the state).” As the line of absolute-immunity cases make clear, however, a prosecutor’s allegedly improper motive alone is not enough to defeat absolute immunity, so long as the general nature of his actions falls within the scope of his duties as an advocate for the state. This is particularly true here, where Cady is challenging only one provision of the DPA, not the document as a whole.

Nor did Cady present any proof that Broughton had any personal motives to benefit the Seamans or their relatives, or refute Broughton’s contention that the purpose of the DPA’s release-dismissal provision was simply to provide a six-month “cooling off’ period between the parties. Cady has pointed to no authority, in this circuit or elsewhere, that supports his contention that a prosecutor’s actions in connection with the negotiation and entry of a release-dismissal agreement is outside the scope of a prosecutor’s role as an advocate.

The defendants, on the other hand, have persuasively argued that County Prosecutor Broughton’s actions in connection with the DPA should be covered by absolute immunity. Absolute immunity “defeats the suit at the outset.” Imbler, 424 U.S. at 419 n. 13, 96 S.Ct. 984. This leaves us with no need to reach the issue of whether County Prosecutor Broughton in his individual capacity violated Cady’s First Amendment rights. The district court therefore properly granted

summary judgment with respect to Cady’s claim against Broughton in the latter’s individual capacity. b. Broughton in his official capacity “In an official capacity action, the plaintiff seeks damages not from the individual officer, but from the entity for which the officer is an agent.” Pusey v. City of Youngstown, 11 F.3d 652, 657 (6th Cir.1993). “[A]n official capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985).

Indeed, there is caselaw suggesting that a lawsuit against an officer in his official capacity and against the governmental entity, such as a city, are functionally the same and should therefore be subjected to the same analysis. See, e.g., Almonte v. City of Long Beach, 478 F.3d 100, 106 (2d Cir.2007) (explaining that “an official-capacity claim is in substance a claim against the municipality”). We believe, however, that Cady’s claims against County Prosecutor Broughton and against Arenac County should be analyzed separately for the sake of clarity.

The immunity issue in this subsection is therefore limited to a discussion of the claim against Broughton in his official capacity. Absolute immunity is a personal defense that is unavailable in an official-capacity action. Graham, 473 U.S. at 166-67, 105 S.Ct. 3099.

Contrary to the district court’s analysis, therefore, County Prosecutor Broughton is not entitled to absolute prosecutorial immunity in his official capacity. “The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment.” Id. at 167, 105 S.Ct. 3099. Both sides have apparently considered Broughton solely as an employee of Arenac County.

The defendants, in particular, never put forth an argument that Broughton was functioning as an agent of the state — and is thus entitled to sovereign immunity — in his dealings with Cady. We nonetheless conclude that Broughton was in fact acting as an agent of the state and that Cady’s suit against him in his official capacity is barred by the Eleventh Amendment. The Eleventh Amendment bars § 1983 suits against a state, its agencies, and its officials sued in their official capacities for damages. Graham, 473 U.S. at 169, 105 S.Ct. 3099.

Whether a county prosecutor is deemed a “state official” depends, at least in part, on state law. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (holding that whether an entity should be treated as “an arm of the State” rather than as a municipal corporation “depends, at least in part, upon the nature of the entity created by state law”).

This court in Pusey, for example, held that city prosecutors are considered state officials under Ohio law when they “are responsible for prosecuting state criminal charges.” 11 F.3d at 657. “Thus, a city official pursues her duties as a state agent when enforcing state law or policy.” Id. The facts of this case are essentially the same as in Pusey.

Under Michigan law, county prosecuting attorneys are charged with the duty of “appearing] for the state or county, and prosecute or defend ... all prosecutions, suits, applications and motions, whether civil or criminal, in which the state or county may be a party or interested.” Mich. Comp. Laws § 49.153 (2008). This formulation indicates that county attorneys in Michigan, like their counterparts in Ohio, are responsible for enforcing criminal laws on behalf of the state.

In the instant case, Cady was charged with and prosecuted for two counts of assault and battery under Michigan Compiled Laws § 750.81(1), a part of the state penal code. We have previously determined that state criminal law represents the policy of the state. Pusey, 11 F.3d at 657. This means that County Prosecutor Broughton was acting “as a state agent when prosecuting state criminal charges.” See id. Cady’s suit against Broughton in his official capacity should therefore be treated as a suit against the state. See Graham, 473 U.S. at 167, 105 S.Ct. 3099.

Our concurring colleague believes, however, that Pusey is distinguishable from the present case. Relying on Brotherton v. Cleveland, 173 F.3d 552 (6th Cir.1999), the concurring opinion concludes that because County Prosecutor Broughton was not “rotely” enforcing state law when he entered into the DPA, he was not acting as an arm of the state. See id. at 566. We respectfully disagree. Brotherton held that a local coroner’s implementation of a cornea-removal policy that was not mandated by state law belied his contention that he was acting as an arm of the state.

The Brotherton court explained that when considering whether a contested policy is state policy, the essential question is the degree of discretion possessed by the official in question in implementing the contested policy. Id. But the language of Brotherton makes clear that the “essential question” of discretion applies only to policy choices and not to individual acts by the official in enforcing state law.

The reason for this distinction is that even in “rote” enforcement actions, a prosecutor must make a myriad of choices, such as “whether to prosecute, what targets of prosecution to select, what investigative powers to utilize, what sanctions to seek, plea bargains to strike, or immunities to grant.” Erikson v. Pawnee County Bd. of County Comm’rs, 263 F.3d 1151, 1154 (10th Cir.2001) (citation and internal quotation marks omitted).

If any of these decisions negated “state action” simply because the prosecutor could have “act[ed] differently, or not at all,” see Brotherton, 173 F.3d at 566, then very few prosecutorial actions would be considered “state action.” Such a position is not supported by Brotherton or by other caselaw. See id. (citing with approval several cases, including Pusey, that held that local officials had acted as state agents when they enforced state statutes). This case concerns a single action — the decision to enter into the DPA — by County Prosecutor Broughton. A widespread “policy” is not implicated here.

As the concurrence points out, the DPA was the first and only such agreement ever entered into by the county prosecutor’s office. The question, therefore, is not whether Broughton could have resolved the case in another manner, but whether the DPA was carried out as part of his prosecutorial duties in enforcing state law. We conclude that the situation here is analogous to a plea bargain, which has long been considered to be one of the “critical prosecutorial decisions.” See Erikson, 263 F.3d at 1154; see also Santobel lo v.

New York, 404 U.S. 257, 260, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (“[T]he disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice.”). Prosecutor Broughton had determined, pursuant to his duty as a state prosecutor, that the best way to resolve Cady’s ease was to drop charges against Cady in exchange for a six-month “cooling off’ period. His actions were sufficiently analogous to plea bargaining to be considered as duties executed as an arm of the state.

The Eleventh Amendment has long been interpreted to bar federal courts from exercising jurisdiction over actions against a state brought by her own citizens. Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). “Unless a State has waived its Eleventh Amendment immunity or Congress has overridden it, ... a State cannot be sued directly in its own name regardless of the relief sought.” Graham, 473 U.S. at 167 n. 14, 105 S.Ct. 3099 (citation omitted); see also Atascadero State Hosp. v.

Scanlon, 473 U.S. 234, 238 n. 1, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (“[W]e require an unequivocal indication that the State intends to consent to federal jurisdiction that otherwise would be barred by the Eleventh Amendment.”) “An official can ... be sued in his official capacity. But an official-capacity suit against a state official is deemed to be a suit against the state and is thus barred by the Eleventh Amendment, absent a waiver....” Scott v. O’Grady, 975 F.2d 366, 369 (7th Cir.1992) (citing Graham, 473 U.S. at 169, 105 S.Ct. 3099).

The Supreme Court recognizes an exception to this rule if an official-capacity suit seeks only prospective injunctive or declaratory relief. Papasan, 478 U.S. at 276-78, 106 S.Ct. 2932. In the instant case, however, Cady sued the Arenac County and County Prosecutor Broughton for compensatory and punitive damages, not for injunctive or declaratory relief. The question remains whether we may sua sponte raise the issue of sovereign immunity when neither the parties nor the district court appears to have considered it. The Supreme Court has issued somewhat contradictory holdings on this matter. In Edelman v.

Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), the Court said that the Eleventh Amendment “sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.” See also Atascadero State Hosp., 473 U.S. at 238 n. 1, 105 S.Ct. 3142 (“The principle that the jurisdiction of the federal courts is limited by the sovereign immunity of the States is, without question, a reflection of concern for the sovereignty of the States .... ” (citation and internal quotation marks omitted)).

Later, the Court retreated from the “jurisdictional bar” language in Wisconsin Department of Corrections v. Schacht, 524 U.S. 381, 389, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998), and instead described the Eleventh Amendment as “granting] the State a legal power to assert a sovereign immunity should it choose to do so.” If the defense is not raised, said the Court, a court need not “raise the defect on its own” and may simply “ignore” the issue. Id.

The Sixth Circuit has largely followed the “jurisdictional bar” approach in Edelman by holding that a federal court “can raise the question of sovereign immunity sua sponte because it implicates important questions of federal-court jurisdiction and federal-state comity.” S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir.2008) (citation omitted); see also Nair v. Oakland County Cmty.

Mental Health Auth., 443 F.3d 469, 474 (6th Cir. 2006) (“Like subject-matter jurisdiction, a sovereign-immunity defense may be asserted for the first time on appeal, and it may (and should) be raised by federal courts on their own initiative.” (citations omitted)); Mixon v. Ohio, 193 F.3d 389, 397 (6th Cir.1999) (stating that a federal court “may sua sponte raise the issue of lack of jurisdiction because of the applicability of the eleventh amendment” (citation and internal quotation marks omitted)).

We are thus persuaded that we have the authority to raise the issue of sovereign immunity even though it has not been asserted by County Prosecutor Broughton’s counsel, and that Cady’s suit against Broughton in his official capacity should be barred by the Eleventh Amendment. In sum, the district court reached the right result for the wrong reason regarding this aspect of Cady’s § 1983 claim. c. Arenac County We now turn our attention to Arenac County as the remaining defendant in this case. Units of local government are not entitled to sovereign immunity under the Eleventh Amendment.

Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 369, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). Pursuant to Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a plaintiff suing a unit of local government, such as a county, must identify an unconstitutional policy or custom in order to prevail on a § 1983 claim against it. Bd. of the County Comm’rs v.

Brown, 520 U.S. 397, 403-04, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (“[W]e have required a plaintiff seeking to impose liability on a municipality under § 1983 to identify a municipal ‘policy’ or ‘custom’ that caused the plaintiffs injury.”) A single act by a “decision-maker possessing] final authority to establish municipal policy with respect to the action ordered” may suffice in demonstrating that policy or custom. Pembaur v. Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Cady alleges that County Prosecutor Broughton is such a decisionmaker.

But as explained above, when County Prosecutor Broughton made the decisions related to the issuance of state criminal charges against Cady, the entry of the DPA, and the prosecution of Cady, he was acting as an agent of the state rather than of Arenac County. His actions therefore cannot be attributed to Arenac County, and Arenac County cannot be held liable for Broughton’s actions even if those actions violated Cady’s rights.

See Pusey, 11 F.3d at 659 (“[The prosecutor] was acting on behalf of the state when she prosecuted state criminal charges and therefore her actions in prosecuting the charges, at that point, could not be attributed to the city.”). Cady did not allege any Arenac County policy or custom, apart from Broughton’s actions, that violated his rights. The district court therefore properly dismissed Cady’s § 1983 claim against Arenac County, once again reaching the right result for the wrong reason. III. CONCLUSION For all of the reasons set forth above, we AFFIRM the judgment of the district court.