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A claim against a party "dismissed with prejudice, and without leave to amend" is considered preserved for appeal, regardless of whether the dismissed party is included in a repled complaint.

Michael Lacey and Jim Larkin (collectively “Lacey”), owners of Phoenix New Times, LLC (“New Times”), filed suit against Sheriff Joseph Arpaio, County Attorney Andrew Thomas, Independent Special Deputy Attorney Dennis Wilenchik, and Maricopa County, alleging various § 1983 claims and asserting violations of their First and Fourth Amendment rights. These claims arose from events surrounding Lacey’s arrest following the New Times’s publication of certain materials, including Arpaio’s personal information and subpoenas issued by Wilenchik. The district court dismissed the claims against Wilenchik and Arpaio on grounds of qualified immunity “for failure to state a constitutional violation.” Lacey appealed the dismissal, and Wilenchik appealed the district court’s refusal to grant absolute immunity. As to Wilenchik’s appeal, the Ninth Circuit determined that absolute immunity did not apply to “acts of a prosecutor designed to avoid the ‘judicial phase.’” The Court disagreed with the district court in finding that Lacey had asserted facts that, if true, were sufficient to establish First, Fourth and Fourteenth Amendment violations, such that qualified immunity did not apply to the claims against Arpaio and Wilenchik. The Court then addressed claims against Thomas, who was dismissed under absolute immunity in the initial complaint and not included as a defendant in the amended complaint. The Court overruled in part Forsyth, concluding that “for claims dismissed with prejudice and without leave to amend, we will not require that they be repled in a subsequent amended complaint to preserve them for appeal. But for any claims voluntarily dismissed, we will consider those claims to be waived if not repled.” However, the Court concluded that Thomas’s appointment of Wilenchik was a “prosecutorial function for which immunity is vital.” AFFIRMED in part, REVERSED in part, and REMANDED.