[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 23, 2002
No. 00-16361 THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 97-06832 CV-PAS
ROBERT R. ROWE,
Plaintiff-Appellant,
versus
FORT LAUDERDALE, THE CITY OF,
a municipal corporation, BLACKBURN,
individually and as police officer of the
City of Fort Lauderdale, et al.
Defendants-Appellees.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(January 23, 2002)
Before EDMONDSON and CARNES, Circuit Judges, and MUSGRAVE*, Judge.
___________________
*Honorable R. Kenton Musgrave, Judge, United States Court of International Trade, sitting by
designation.
CARNES, Circuit Judge:
Robert Rowe and Cynthia Doss were married in 1974. The record in this
case does not show how long they were happy together, but it does show that their
marriage ended in bitterness and rancor that has not faded in the two decades since
they were divorced in 1981. The couple had one daughter, and a dispute over
custody of the child became the centerpiece of their disagreements during and after
the divorce. In the midst of the dispute over child custody, the mother reported
that the girl, then age nine, had accused her father of molesting her. The daughter
repeated those accusations to the authorities and in testimony at Rowe’s trial, and
Rowe was convicted and sentenced in 1984 to serve life in prison for the sexual
battery of his daughter. However, in 1994, after he had served ten years of his
sentence, Rowe succeeded in obtaining an order setting aside his conviction on the
grounds of ineffective assistance of counsel.
Having secured his release, Rowe filed in federal district court a lawsuit
raising federal and state law claims against some of the people involved in
accusing, investigating, and prosecuting him. Five of the defendants Rowe did sue
are involved in this appeal. They are: 1) Cynthia Doss, Rowe’s ex-wife, who
initially reported the alleged abuse to authorities; 2) Sharon Anderson, a state
child services worker who investigated Doss’s report of abuse; 3) the Florida
2
Department of Health and Rehabilitative Services (HRS),1 which was Anderson’s
employer at the time she investigated the daughter’s story; 4) Joel Lazarus, the
prosecutor who obtained Rowe’s indictment and conviction; and 5) Michael Satz,
in his official capacity as the State Attorney for Broward County, because he was
Lazarus’s employer at the time of the prosecution.
Each of these defendants prevailed against Rowe in the district court either
on motions to dismiss or motions for summary judgment, and he now appeals the
resulting judgments in their favor. For reasons we will discuss, we are going to
affirm the district court’s grant of summary judgment on the section 1983 claims
against Doss and Lazarus and its dismissal of the claim against Anderson for
insufficient service of process. But we are going to reverse the district court’s
dismissal of the state law claims against Satz and HRS and remand those claims to
the district court for further proceedings.
I. BACKGROUND
A. PROCEDURAL HISTORY
Rowe’s conviction for capital sexual battery was set aside by a state court in
1
By the time Rowe was released from prison, the Florida Department of Health and
Rehabilitative Services had changed its name to the Florida Department of Children and Family
Services. Notwithstanding that, we will refer to the department by its former name or as “HRS,”
because that was what it was called at the time it was involved in the investigation of Rowe.
3
1994 on the grounds of ineffective assistance of counsel at his trial in 1984.2 The
local prosecutor attempted to retry Rowe but his daughter, then in her twenties,
was unwilling to testify, and the trial court ruled that her testimony from the first
trial could not be used in any retrial of Rowe. As a result, there was no retrial; the
charges against Rowe were dismissed.
Three years after his release, in 1997, Rowe filed this lawsuit in federal
district court against Doss, Anderson, and Lazarus, among others, for their roles in
investigating, arresting, and prosecuting him in 1984. He alleged that they had
withheld or destroyed material evidence, and had fabricated and planted false
evidence and used false testimony in order to secure his wrongful conviction. He
further alleged that they had conspired together to achieve their nefarious goal.
(Rowe did not sue his daughter, whose allegedly false testimony was an essential
part of the conspiracy.) Rowe brought malicious prosecution and conspiracy
claims under 42 U.S.C. § 1983 against Lazarus, Anderson, and Doss. He also
brought two state law claims, one for negligent loss or destruction of evidence and
the other for negligent supervision and training, against both Michael Satz in his
2
Specifically, the state court ruled that the assistant public defender who represented
Rowe at trial was ineffective in failing, among other things: 1) to seek the appointment of
medical experts; 2) to request medical reports from the girl’s pediatrician; 3) to contact witnesses
who could have contradicted the girl’s story; 4) to properly present and preserve a motion for a
continuance which would have given him time to do the preceding three things; and 5) to raise or
preserve various evidentiary objections at trial.
4
official capacity as the State Attorney for Broward County (Lazarus’s employer),
and the Florida Department of Health and Rehabilitative Services (Anderson’s
employer).3
All of the defendants filed motions to dismiss. The district court did dismiss
the state law claims against Satz and HRS, finding that Rowe had not timely filed
the notice required under Florida law to invoke the state’s statutory waiver of
sovereign immunity. The district court denied Lazarus’s and Doss’s motions to
dismiss.4 As for Anderson, the district court ruled that she had not been properly
served, quashed the attempted service on her, and gave Rowe 30 days in which to
effect proper service. Rowe then unsuccessfully attempted to serve Anderson via
letters rogatory in Australia, where he believed she was residing. After that effort
failed, Rowe attempted substituted service by serving the Florida Secretary of State
3
In this same lawsuit, Rowe brought similar claims against the City of Fort Lauderdale and
certain individually named Fort Lauderdale police officers. Those claims were dismissed by the
district court, see Rowe v. City of Fort Lauderdale, 8 F. Supp. 2d 1369 (S.D. Fla. 1998), and those
defendants are not involved in this appeal. Rowe also sued the Broward County public defender in
a separate section 1983 lawsuit, alleging that the failure to allot adequate resources to assistant
public defenders had hampered the representation Rowe received from the assistant public defender
who represented him in his criminal trial. The public defender was granted summary judgment on
immunity grounds, and we affirmed. See Rowe v. Schreiber, 139 F.3d 1381 (11th Cir. 1998).
4
The district court initially granted Doss’s motion to dismiss the conspiracy claims,
because Rowe failed to allege the necessary element of agreement between the conspirators.
However, Rowe then amended his complaint to properly allege the elements of conspiracy, and
the district court denied Doss’s motion to dismiss the amended complaint.
5
and mailing a certified copy of the Second Amended Complaint to Anderson at the
Australian address that had been provided by her trial counsel. Anderson filed a
motion to dismiss, asserting that she had not been properly served. The district
court agreed, quashed the substituted service on Anderson, and dismissed Rowe’s
claims against her.
Lazarus and Doss then each filed summary judgment motions. The district
court granted Doss’s motion in August 1999, and granted Lazarus’s motion in
August 2000. Sandra Ledegang, a police detective who was by this point the last
defendant left in the case, settled with Rowe, and the court entered final judgment
dismissing the case with prejudice. Rowe now appeals the summary judgments
granted to Lazarus and Doss, and the dismissals granted to Satz, HRS, and
Anderson.
B. ROWE’S THEORY
Before getting into Rowe’s specific claims and theories of liability as to each
remaining defendant, we think it helpful to set out his overall theory of how he
came to be convicted and spend ten years in prison for a crime he insists he never
committed. Once we have done that, we can turn to a more specific examination of
the actual evidence and law applicable to the claims against each of the remaining
defendants. We stress that what we set out here is not proven fact, and some of it
6
is not even supported by any reasonable view of the evidence, but instead is
Rowe’s best case – or perhaps “worst case” would be a better term – scenario.
Rowe believes that he was the victim of a conspiracy whose goal was to
wrongfully convict him of sexually abusing his daughter. His wife coaxed his
daughter into fabricating tales of abuse at the hands of her father, and the
conspiracy began in earnest after Doss called the Florida Department of Health and
Rehabilitative Services to report the allegations. From that point, various state
officials joined with Doss to see that Rowe was unlawfully convicted.
Rowe believes that Sharon Anderson, an HRS case worker, joined the
conspiracy. Although Anderson did not take Doss’s initial call to HRS, she was on
duty the day after the call came in, and thus became the main HRS worker on the
Rowe case. She would later prepare and back-date a HRS “intake report” to
replace the one actually taken when Doss first called HRS. The replacement report
made it look as though Anderson had taken the initial call, and more importantly
omitted important information about what the girl had said over the
phone–information that had been included in the initial, genuine intake report. On
the day after the initial phone report, Anderson visited Doss’s apartment and spoke
with Rowe’s daughter. She then brought the girl down to the police station where
a police officer, Sandra Ledegang, took the girl’s recorded statement. Anderson
7
would later give inconsistent testimony as to whether or not she was in the room
with Ledegang when the girl gave her statement.
Rowe believes that if Anderson was present, then she would have had
reason to know about the next step in the conspiracy.5 The next step in the
conspiracy, according to Rowe, is that Ledegang deliberately transcribed the
audiotape of the girl’s statement inaccurately in order to purge it of inconsistencies,
bolster the girl’s credibility, and clear away indications that Ledegang had coaxed
the girl into giving the desired answers. Doss, too, was apprised of this planned
fabrication because, after Ledegang had taken her daughter’s statement, Ledegang
confided in her that the girl’s statement was inconsistent, or unpersuasive, but that
Ledegang was planning to “fix” the problems when she did the transcription.
Ledegang then concealed the inaccuracies in the transcription with her repeated
false claim in deposition and at trial that she had, pursuant to police procedure,
destroyed the original audiotapes of the girl’s statement.
Rowe believes, however, that the tapes of his daughter’s statement had not
been destroyed, but were instead in the possession, or at least in the control of the
prosecutor, Lazarus. Lazarus not only had the tapes, but he let the trial judge
5
This is as good a place as any to trim the case down by one defendant. After a thorough
review of the record and full consideration of Rowe’s arguments, we affirm without discussion
the district court’s dismissal of the claim against Anderson on grounds that she was not properly
served. See 11th Cir. R. 36-1.
8
listen to them. Yet the tapes, which would have shown that the transcript was a
forgery, and that the daughter’s original answers were inconsistent, incredible, and
insincere (because coaxed from her by Ledegang), were never turned over to
Rowe.
Rowe believes that concealing the tapes was only part of Lazarus’s role in
the frame-up. Lazarus also attended the search of Rowe’s apartment that
immediately followed the taking of the recorded statement, and thus was present
when police switched the girl’s short jump rope with a longer, knotted one to better
corroborate the girl’s story that her father tied her up with her jump rope when he
abused her. Later, at trial, Lazarus introduced the phony long, knotted rope into
evidence, even though he had seen the police discover the original short, unknotted
one. Lazarus also knew that the police had found in Rowe’s apartment various
items that would have helped him prove he had a good relationship with his
daughter, but Lazarus did nothing when those items were removed from the
apartment (most likely by Ledegang) and then withheld from Rowe. Knowing
about the suppressed tapes, the phony rope, and the withheld evidence, and having
reason to know (from the discrepancies between the tape and transcript) that the
daughter’s story was untrue, Lazarus nonetheless sought and procured the
indictment of Rowe on three counts of capital sexual battery. At trial Lazarus put
9
on Doss, Anderson, and Ledegang as witnesses, all of whom perjured themselves,
and introduced the fabricated evidence (the rope and photo) to prove the case.
Thus, Rowe believes it was through the concerted and bad-hearted efforts of
Doss, Anderson, Ledegang, and Lazarus that he was convicted and sentenced to
life in prison. According to Rowe, that is the real story behind his conviction.
We turn now to the specific legal claims against each of the remaining
defendants to see what the evidence, viewed in the light most favorable to Rowe,
shows, and the result produced when the law is applied to that evidence. See Mize
v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996).
II. DISCUSSION
A. DEFENDANT LAZARUS’S SUMMARY JUDGMENT MOTION
Rowe brought two section 1983 malicious prosecution claims against
Lazarus: a substantive claim based upon Lazarus’s own actions, and a conspiracy
claim based upon his concerted actions with others – Anderson, Ledegang, and
Doss. Viewed in the light most favorable to Rowe, and drawing all inferences in
his favor, the evidence shows the following facts regarding these claims against
Lazarus.
Lazarus was present when the police searched Rowe’s apartment. Rowe,
who was also present in the apartment at the time, personally saw Lazarus actively
10
participate in the search. Lazarus logged in evidence as it was found. During the
search the police were looking for, among other things, a jump rope which Rowe’s
daughter claimed he had used to tie her up during the sexual abuse. The police did
find a jump rope in Rowe’s apartment. The Return and Inventory attached to the
search warrant after the search indicates that the jump rope was found in the living
room, and Ledegang testified to the grand jury that the jump rope had been found
“over a sofa” in the living room, but that she was not the one who found it. At
trial, however, Ledegang testified that the jump rope had been found in the girl’s
bedroom, and Lazarus produced a photo of the jump rope in the bedroom to
support that testimony.
Rowe saw Ledegang find the jump rope in the girl’s bedroom and take it to
another bedroom, where Lazarus was located.6 Rowe saw no photographs being
taken of the jump rope taken before Ledegang moved it, and therefore the
photograph of the rope in the girl’s bedroom, that was introduced at trial and which
6
Citing a passage from Lazarus’s testimony in Rowe’s post-conviction proceedings ten
years after the search, Rowe alternatively contends that Lazarus was the one who actually found
the rope. Rowe’s interpretation of that testimony strains credulity and flatly contradicts Rowe’s
own testimony that he personally saw Ledegang find the rope. Even in the summary judgment
context, we are not required to accept any interpretation of testimony by the non-movant, no
matter how strained. Instead, we need only accept every reasonable interpretation that the non-
movant puts forward. Having carefully examined that testimony in its context, we reject Rowe’s
interpretation of it as unreasonable and accept his own testimony that Ledegang is the one who
found the rope.
11
Lazarus and Ledegang represented to be a photo of the rope lying where it was
first found, must have been an after-the-fact fabrication. In addition, the actual
rope that Lazarus introduced into evidence at trial was not his daughter’s rope. The
daughter’s rope was short, dirty, and frayed, and it had no knots in it. The rope
introduced at trial, on the other hand, was 96 inches long, “almost brand new,” and
had loops in it which neatly corroborated the daughter’s testimony that Rowe had
used the rope to tie her up.
The rope was not the only item of evidence the police were searching for.
The search warrant also listed a polaroid camera which the girl claimed Rowe had
used to take nude photographs of her, nude polaroid photographs of the girl and
other neighborhood children, old clothes of Doss’s which the girl said Rowe had
made her wear while he abused her, and sexually explicit videos. They found the
camera, the clothes, and the videos, but not the nude pictures the girl had
described.
Exculpatory evidence was present in Rowe’s apartment prior to his arrest, it
was gone after the arrest, and it was never provided to defense counsel. That
evidence included Rowe’s personal record of the problems Doss had been causing
in his visitation schedule, an audiotape of Rowe playing with his daughter, and
cards and notes sent by his daughter to Rowe. The visitation record would have
12
shown the acrimony between him and Doss over visitation, and it would have
impeached his daughter’s testimony by showing she was only with him on Father’s
Day itself and not for the entire Father’s Day weekend as she had claimed in her
recorded statement and in her testimony. The tape, cards, and notes would have
been relevant to show that Rowe and his daughter had a loving relationship, and
not an abusive one. Ledegang had the keys to Rowe’s apartment in connection
with the search and at the time the evidence disappeared. As we have mentioned,
Lazarus was present during the search and helped log in the evidence as it was
found. The exculpatory evidence was never logged into evidence or made
available to Rowe’s lawyer.7
In addition to his role in the search, Lazarus, after becoming the prosecutor
in the case, had the actual audiotapes of the daughter’s statement. Ledegang, who
took the girl’s statement and had it transcribed, testified at the trial that she had
erased the tapes immediately after transcribing them. At the preliminary hearing,
however, Lazarus admitted in the presence of Rowe and his counsel that he had
the tapes in his files.8 Not only that, but during later pretrial proceedings, the
7
This evidence, if it did once exist, has never resurfaced.
8
When the lawyers were discussing discovery, Rowe sought to gain access to audiotapes
he had made of him playing with his daughter, which he claimed had been in his apartment at the
time of the search. Lazarus denied that any tapes of Rowe and his daughter from the apartment
were in his file, saying: “The only tapes I’ve indicated as far as outside the video cassettes would
13
judge said: “Somebody asked, ‘Did you hear the sounds on the tape recording’–
and that detective that asked her the questions first –boy. Oh, boy. Oh, boy. I
never saw anything so leading in my life. Terrible.” From that Rowe asks us to
infer – and difficult as it is we will infer; it does not matter to the result anyway–
that the trial judge himself had heard the audio tapes.
To summarize, viewed most favorably to Rowe, the evidence shows that
Lazarus had, or had access to, the audio tapes of the girl’s recorded statement, but
did not give those tapes to Rowe’s attorney (although Lazarus did inform him of
their existence). He either found, or witnessed the finding of, the real jump rope,
and witnessed the finding of other pieces of exculpatory evidence, which were
never logged into evidence and which were never made available to Rowe’s
defense attorney. At Rowe’s trial, Lazarus introduced a fabricated photograph
indicating the jump rope had been found in the girl’s bedroom when he knew it had
not, and knowingly introduced a fake jump rope that was longer than the real rope
and had been knotted to corroborate the girl’s story. In addition, Lazarus put on
testimony by Doss, her daughter, Anderson, and Ledegang, even though he either
knew (as to Ledegang) or had reason to know (as to Anderson, Doss, and her
be the cassettes of the mother and child on the original statement.” (Doss had, like her daughter,
given a recorded statement to the police on the day Anderson took the child to the police station.)
14
daughter) they were lying.9
We now turn to the issue of whether, given those facts, the district court was
right to grant Lazarus summary judgment on Rowe’s claims against him. We
begin by discussing whether Lazarus was entitled to immunity from Rowe’s
claims. A prosecutor is entitled to absolute immunity for all actions he takes while
performing his function as an advocate for the government. Buckley v.
Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct.. 2606, 2615-16 (1993). The
prosecutorial function includes the initiation and pursuit of criminal prosecution,
Imbler v. Pachtman, 424 U.S. 409, 424, 96 S. Ct.. 984, 992 (1976), and all
appearances before the court, including examining witnesses and presenting
evidence. See Burns v. Reed, 500 U.S. 478, 492 111 S. Ct.. 1934, 1942 (1991).
Under these principles, it is clear that, even if Lazarus knowingly proffered
perjured testimony and fabricated exhibits at trial, he is entitled to absolute
immunity from liability for doing so.
To the extent he stepped out of his prosecutorial role to perform “the
9
We realize that Lazarus disputes this version of the facts, but, on summary judgment, we
are bound to accept Rowe’s version of any disputed facts, and draw all reasonable inferences
from those facts in his favor. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.
1996). Thus, for example, while we doubt that Lazarus’s and the trial judge’s statements really
prove that Lazarus had the tapes of the girl’s statement and allowed the judge to listen to them
(which, if they really were so damning, would have been unwise, unless the judge, too, was in on
the conspiracy), in reviewing the summary judgment granted Lazarus, we assume that this
allegation is true.
15
investigative functions normally performed by a detective or police officer,”
however, Lazarus does not have absolute immunity. See Buckley, 509 U.S. at 273,
113 S. Ct.. at 2616; see also Burns, 500 U.S. at 496, 111 S. Ct.. at 1944-45 (no
absolute immunity for a prosecutor who gives legal advice to police during pretrial
investigation); Jones v. Cannon, 174 F.3d 1271, 1285 (11th Cir. 1999) (prosecutor
is only entitled to immunity for his conduct during the “judicial phase” of a case).
Thus, for example, Lazarus does not have absolute immunity for his participation
in the search of Rowe’s apartment. He does, however, have qualified immunity for
his investigatory actions.
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); Lassiter v. Ala. A&M Univ., 28 F.3d 1146, 1149 (11th Cir.
1994) (en banc). Under this rule, 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, 28 F.3d at 1149. When case law is necessary to
16
clearly establish the right,10 only a decision of the United States Supreme Court,
this Court, or the highest court of the state in which the case arose will suffice to
establish it. Marsh v. Butler County, 268 F.3d 1014, 1032 n.10 (11th Cir. 2001) (en
banc). Further, even a decision from one of those courts will only clearly establish
a right when the official’s actions supposed to have violated that right were taken
in a factual situation “materially similar” to the factual situation in the decision. Id.
at 1032. “For qualified immunity to be surrendered, pre-existing law must dictate,
that is, truly compel (not just suggest or allow or raise a question about), the
conclusion for every like-situated, reasonable government agent that what
defendant is doing violates federal law in the circumstances.” Lassiter, 28 F.3d at
1150.
10
Case law is not always necessary to clearly establish a right. A right may be so clear
from the text of the Constitution or federal statute that no prior decision is necessary to give clear
notice of it to an official. See Lassiter, 28 F.3d at 1150 n.4. Also, a general constitutional rule
set out in preexisting case law may apply with obvious clarity to the specific circumstances
facing the official. See United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219 (1997). The
official’s conduct may be so egregious that an objective and reasonable official must have
known it was unconstitutional even without any fact-specific caselaw on point. See Marsh v.
Butler County, 268 F.3d 1014, 1031 n.9 (11th Cir. 2001) (en banc). Such exceptions are rare,
however. The general rule is that “[g]eneral propositions have little to do with the concept of
qualified immunity. If case law, in factual terms, has not staked out a bright line, qualified
immunity almost always protects the defendant.” Lassiter, 28 F.3d at1150 (citations and
quotations omitted). This case, where Rowe is alleging that Lazarus’s actions constituted
“malicious prosecution,” falls squarely within the general rule. Rowe can only prove that
Lazarus’s actions violated Rowe’s clearly established rights by pointing us to case law that was
extant at the time of Lazarus’s acts, which concluded that conduct “materially similar” to
Lazarus’s violated a federal right.
17
When a prosecutor steps out of the role of advocate and into the role of
investigator, for example by participating in a search, he is performing a
discretionary governmental function, and thus may be entitled to qualified
immunity. Mullinax v. McElhenney, 817 F.2d 711, 715 (11th Cir. 1987). As has
been noted, by attending and allegedly participating in the search of Rowe’s
apartment, Lazarus stepped out of his advocate’s role, and lost the protection of
absolute immunity. But, by assuming the role of an investigator, he took on a
qualified immunity that protected all of his actions in performing that role that did
not violate clearly established rights of which a reasonable person in his position
would have known.
An investigator’s planting or fabricating evidence in an effort to obtain a
conviction does violate clearly established law, Jones, 174 F.3d at 1289-90; Riley
v. City of Montgomery, 104 F.3d 1247, 1253 (11th Cir. 1997), and therefore is not
protected by qualified immunity. Thus, if Lazarus had engaged in any planting or
fabricating of evidence while he was in an investigatory role, he would not be
immune from liability for damages to Rowe.
However, Rowe did not produce any summary judgment evidence showing
that Lazarus planted or fabricated evidence. With respect to the apartment search,
the most the evidence shows is that Lazarus participated in the search himself, and
18
knew what was found in the apartment and what was not found in it. That does not
mean that Lazarus personally fabricated or tampered with any evidence. For
example, the fact that Rowe saw Ledegang take the jump rope to the back of the
apartment, where Lazarus was located, does not allow a reasonable inference that
Ledegang gave the rope to Lazarus, much less that Lazarus thereafter personally
tampered with the rope. As for investigatory conduct besides the search, according
to Rowe it was Anderson who fabricated the HRS Intake Report, and Ledegang
who deliberately mis-transcribed the recorded statement. Rowe has shown us no
evidence that Lazarus was even aware of these fabrications (if they occurred) at
any time before he took off his investigative hat and put on his prosecutorial one.
Rowe certainly has not shown us any evidence that, while in an investigator’s role,
Lazarus personally participated in those fabrications, if they occurred.
The most Lazarus did while acting in an investigative role, when he was
protected only by qualified immunity, was to be aware that others were tampering
with evidence and take no action to stop them. Rowe does not cite any decisions,
and we are not aware of any, clearly establishing that a prosecutor’s mere
awareness of (as opposed to participation in) evidence fabrication or tampering
violates the federal rights of a criminal defendant. To the contrary, in an analogous
context, this Court has held that a police officer did not violate clearly established
19
law merely by failing to act in the face of knowledge that another officer had
fabricated a confession. Jones, 174 F.3d at 1286. Therefore, Lazarus is entitled to
qualified immunity for the actions he personally took or failed to take while in the
investigator’s role.
It was only while he was in the prosecutor’s role that Lazarus allegedly did
anything that violated Rowe’s clearly established rights, such as: charging Rowe
without probable cause, withholding the tapes of the girl’s statement, and
proffering fabricated evidence such as the rope and perjured testimony. For those
actions taken while in the prosecutor’s role, however, Lazarus is entitled to
absolute immunity from liability.
Therefore, for everything Lazarus did in relation to the investigation and
prosecution of Rowe, he is protected by either absolute or qualified immunity.
Because Rowe failed to raise a genuine issue of material fact that Lazarus was not
immune from liability for his own actions, the district court correctly granted
Lazarus summary judgment on the substantive malicious prosecution claim.
There remains the claim against Lazarus based upon the allegations that he
conspired with others to maliciously prosecute Rowe. Lazarus can only be liable
for conspiring to violate Rowe’s rights if his agreement to join the conspiracy or
conduct knowingly done in furtherance of it occurred while he was not in his
20
prosecutorial role. Lazarus cannot not be held liable for conspiring to violate
Rowe’s rights by prosecuting him, because he is absolutely immune from liability
for prosecuting Rowe, and, logically, “a person may not be prosecuted for
conspiring to commit an act that he may perform with impunity.” Jones, 174 F.3d
at 1289 (quotation omitted).
The question, then, is whether there is sufficient evidence to show that, at
some time before he put on his prosecutor’s hat, such as the time he was
participating in the search, Lazarus was part of a conspiracy to deprive Rowe of
his rights. If we could consider Lazarus’s alleged conduct after indictment and at
trial, such as presenting evidence which he knew to be fabricated and putting on
witnesses he knew would commit perjury, there might be enough evidence to allow
a reasonable jury to infer that Lazarus was a member of a conspiracy to wrongfully
convict Rowe even as early as the time he participated in the search. For example,
if a jury could consider Lazarus’s presence when the rope was found in light of his
(again, allegedly) introducing another rope at the trial, the jury might reasonably
infer that Lazarus actively agreed to or suggested the rope switch at the time of the
search, before Rowe’s prosecution began.
However, Lazarus’s conduct at trial may not be considered as evidence of
his participation in a conspiracy. We have previously concluded that a witness’s
21
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. Mastroianni v. Bowers, 173 F.3d 1363, 1367 (11th Cir. 1999). The reasons
for this rule are straightforward. Allowing the use of absolutely immune false
testimony as evidence of conspiratorial conduct that is not immune would weaken
the shield of immunity that protects witnesses from liability, a shield essential to
the presentation of testimony. If getting on the stand to testify exposed a witness
to liability, the absolute immunity extended to a witness would be illusory, and that
is true even if the exposure was limited to liability for a conspiracy proven through
use of the testimony. Thus a witness must be immune from having her testimony
used to show a conspiracy.
These same reasons apply with equal force to prosecutorial immunity. 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. “[T]he vigorous and fearless performance of the prosecutor's duty that is
essential to the proper functioning of the criminal justice system” would be unduly
chilled. Imbler v. Pachtman, 424 U.S. 409, 427-28, 96 S. Ct.. 984, 993-94 (1976).
That is why acts for which a prosecutor enjoys absolute immunity may not be
22
considered as evidence of the prosecutor’s membership in a conspiracy for which
the prosecutor does not have immunity.
It follows that we may not consider evidence of Lazarus’s alleged
misconduct in the prosecution of Rowe in determining whether there is sufficient
evidence that he conspired to maliciously prosecute Rowe. Absent evidence of
Lazarus’s conduct while in the prosecutor’s role, there is no genuine issue of
material fact supporting the claim that Lazarus participated in a conspiracy against
Rowe. So, the district court correctly granted summary judgment to Lazarus on
that conspiracy claim, as well as the substantive claim of malicious prosecution.
B. DEFENDANT DOSS’S SUMMARY JUDGMENT MOTION
Rowe sued Doss under section 1983 both for malicious prosecution and
conspiracy to maliciously prosecute. Viewed in the light most favorable to Rowe,
and drawing all inferences in his favor, the evidence shows the following facts to
support these claims.
During and after their divorce, Rowe and Doss waged an acrimonious battle
over the custody of their daughter, which included numerous court appearances
and at least one occasion when police were called to Doss’s residence to sort out a
visitation dispute. The visitation problems intensified throughout 1984, as Doss
23
consistently interfered with Rowe’s scheduled visitation with his daughter. On
July 3, 1984, after Doss had been reading to her daughter from a magazine article
about child abuse, the girl told Doss that Rowe had been sexually and physically
abusing her at times up to and including the recent Father’s Day weekend. Doss
then called the Florida Department of Health and Rehabilitative Services child
abuse hotline to report her daughter’s accusations of abuse.
Responding to Doss’s hotline call, the HRS caseworker Sharon Anderson
visited Doss’s apartment and spoke with her daughter. Anderson then took the girl
down to the police station to give a recorded statement. Doss went with her
daughter to the station, and waited while Detective Sandra Ledegang took her
daughter’s statement. While Doss was at the station after Ledegang had taken the
girl’s statement, Ledegang told her the taped statement “was incompetence or
something,” but that she should not worry because the statement still needed to be
typed up. Rowe also introduced evidence indicating that there were factual
discrepancies between his daughter’s story of abuse and her actual physical
condition, which would have given Doss reason to know her daughter was lying.
Those are the facts which the record evidence, viewed in the light most
favorable to Rowe, shows regarding his section 1983 claims against Doss. Given
these facts, the district court granted Doss summary judgment on Rowe’s claims
24
against her, concluding that, with regard to the conspiracy claim, “the record is
completely devoid of any evidence upon which the requisite agreement can be
inferred.” The court also reasoned that because Doss, as a private citizen, cannot
be liable under section 1983 unless she is shown to have conspired with one or
more state actors, see NAACP v. Hunt, 891 F.2d 1555, 1563 (11th Cir. 1990), when
the conspiracy claim against her failed, the substantive claim necessarily failed
with it. For the same reason, if we affirm the summary judgment for Doss on the
conspiracy claim, we must necessarily affirm the summary judgment on the
substantive claim as well.
Conspiring to violate another person’s constitutional rights violates section
1983. Dennis v. Sparks, 449 U.S. 24, 27 101 S. Ct.. 183, 186 (1980); Strength v.
Hubert, 854 F.2d 421, 425 (11th Cir. 1988), overruled in part on other grounds by
Whiting v. Traylor, 85 F.3d 581, 584 n. 4 (11th Cir.1996). To establish a prima
facie case of section 1983 conspiracy, a plaintiff must show, among other things,
that the defendants “reached an understanding to violate [his] rights.” Strength, 854
F.2d at 425 (quotation omitted). The plaintiff does not have to produce a “smoking
gun” to establish the “understanding” or “willful participation” required to show a
conspiracy, Bendiburg v. Dempsey, 909 F.2d 463, 469 (11th Cir. 1990), but must
show some evidence of agreement between the defendants. Bailey v. Bd. of
25
County Comm’rs of Alachua County, 956 F.2d 1112, 1122 (11th Cir. 1992) (“The
linchpin for conspiracy is agreement, which presupposes communication.”). For a
conspiracy claim to survive a motion for summary judgment “[a] mere ‘scintilla’ of
evidence . . . will not suffice; there must be enough of a showing that the jury could
reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.
1990).
Rowe would have us infer that the visitation disputes between him and Doss
gave her the motive to encourage her daughter to make false claims of sexual abuse
in order to get Rowe “out of the picture.” Granting Rowe that inference, however,
the other circumstantial evidence simply does not suggest Doss agreed with
Lazarus, Ledegang, and Anderson to seek Rowe’s unjust prosecution and
conviction. At the most, the evidence suggests that Doss coaxed allegations of
abuse out of her daughter which she knew were untrue, stayed quiet even though
she knew Rowe was being wrongfully prosecuted, and testified untruthfully herself
at Rowe’s trial.11 If true, this is reprehensible behavior, but it does not involve a
conspiracy between Doss and anyone against Rowe, except between Doss and her
11
Doss is entitled to absolute immunity from liability for her testimony. Mastroianni v.
Bowers, 160 F.3d 671, 677 (11th Cir. 1998). Rowe argues that, while it may not itself subject her
to liability, Doss’s alleged perjury can nonetheless be considered as evidence that she conspired
against him. This court, however, has previously considered and squarely rejected this argument.
Id. at 1367.
26
daughter, who is not a state actor. Rowe simply fails to point to any evidence that
suggests an “understanding” between Doss and the various state actors who took
part in the investigation and prosecution of Rowe. Indeed, he does not even point
to any evidence which suggests that, after Doss made the initial complaint, she
even knew what Anderson, Ledegang, and Lazarus were doing with the evidence
in Rowe’s case.
Rowe’s best piece of evidence that Doss was aware of, and participated in, a
conspiracy actually tends to prove just the opposite – that Doss was kept out of
any conspiracy. Rowe claims that when Ledegang told Doss her daughter’s
recorded statement was “incompetence or something,” Doss knew that there were
problems and inconsistencies in the girl’s statement, and knew Ledegang was
planning to “fix” those problems through the transcription. According to Rowe,
Doss tacitly joined this conspiracy by assenting to the alteration and later tailoring
her own false testimony to bolster the altered story.
To begin with, the full quote from the deposition transcript shows that, far
from feeling brought up to speed on the details of a conspiratorial plan, Doss was
feeling frustrated at the lack of information that Ledegang provided her:
Q: Did the detectives talk with you about maybe what your
involvement with your daughter should be or how you should talk to
27
your daughter?
A: Nobody gave me any guidance about anything.
....
No. No one told me anything. Wait a minute. I do think that
Detective Ledegang said that her statement was incompetence or
something, for some reason, because I kind of said what did she say or
something, and she said, ‘Don’t worry about it. Now it has to be
typed up,’ or something like that. She didn’t want to – seem to tell
me anything.
(emphasis added).
Rowe claims Ledegang was telling Doss the statement was incompetent,
presumably meaning ‘inadmissible,’ or perhaps ‘unpersuasive.’ But this reading of
the words “incompetence or something” is wrenched out of context and strained.
Doss used the phrase “incompetence or something” while discussing her frustration
at not being told anything. (She was not present when Ledegang took her
daughter’s statement, so she had no personal knowledge of what the girl had told
Anderson.) Thus, the only piece of evidence Rowe cites to show Doss’s awareness
of and agreement to participate in a conspiracy actually shows that Doss felt she
was being kept in the dark by HRS and the police.
28
More importantly, even assuming Doss knew of Ledegang’s plans to alter
the transcript, this still would not show that Doss had agreed with Ledegang to do
anything, but only that Doss knew Ledegang was planning to doctor the transcript
in some unspecified way in an effort to bolster the case against Rowe. That Doss
agreed to aid Ledegang in that effort could only be inferred from Doss later
perjuring herself at the trial – if she did. But we cannot consider Doss’s testimony
as evidence of her participation in a conspiracy. See Mastroianni v. Bowers, 173
F.3d 1363, 1367 (11th Cir. 1999); see also Jones v. Cannon, 174 F.3d 1271, 1287
n.10 (11th Cir. 1999) (rejecting an exception for the testimony of “complaining
witnesses.”)
In sum, Rowe’s evidence would not allow a reasonable jury to find even that
Doss was aware of a conspiracy, much less that she agreed to participate in one.
Rowe’s failure to raise a genuine issue of material fact as to Doss’s having made an
agreement with Ledegang, Anderson, or Lazarus means he failed to raise a genuine
issue of material fact on a crucial element of the conspiracy claim. Therefore the
district court correctly granted Doss summary judgment on that claim.
As mentioned above, section 1983 does not afford a remedy against a private
person unless that person is shown to have conspired with one or more state actors.
NAACP v. Hunt, 891 F.2d 1555, 1563 (11th Cir. 1990). Because Rowe’s
29
conspiracy claim against Doss fails, his substantive section 1983 claim against her
must fail as well. The district court therefore correctly granted Doss summary
judgment on Rowe’s substantive malicious prosecution claim against her.
C. DEFENDANTS SATZ’S AND HRS’ MOTIONS TO DISMISS
Rowe asserted two state law claims against the Florida Department of Health
and Rehabilitative Services and Satz, in his official role as the State Attorney for
Florida’s 17th Judicial Circuit: one for negligent supervision and training, and one
for negligent destruction or loss of evidence (spoliation). In his negligent training
and supervision claim, Rowe alleged that Satz’s negligent supervision of Lazarus,
and HRS’s negligent supervision of Anderson and other employees responsible for
maintaining records, allowed Lazarus and Anderson to manipulate evidence and
conspire against Rowe. In his spoliation claim, Rowe alleged that 1) both HRS and
Satz had, and breached, a duty to retain the evidence that was seized in the search
of Rowe’s apartment; 2) HRS had, and breached, a duty to retain tapes of Doss’s
initial phone call to the HRS child abuse hotline and copies of the initial HRS
Intake Report; and 3) Satz had, and breached, a duty to retain the jump rope that
was introduced into evidence at trial.
Satz and HRS moved to dismiss these claims on the grounds that Rowe had
30
failed to provide them with timely notice of the claims. Florida law requires that a
plaintiff wishing to sue Florida, or one of its agencies or subdivisions, must give
written notice of the claim to the agency “within 3 years after such claim accrues”
in order to invoke the state’s waiver of its sovereign immunity. Fla. Stat. ch.
768.28(6)(a). Both parties agree that Rowe gave notice of his claims to Satz and
HRS within three years of his release from prison in 1994. They dispute, however,
whether this notice was given within three years of the time that his state law claims
“accrued.” Under Florida law, a claim “accrues when the last element constituting
the cause of action occurs.” Fla. Stat. ch. 95.031. This means that “a cause of
action cannot be said to have accrued, within the meaning of the statute of
limitations, until an action may be brought.” State Farm Mut. Auto Ins. Co. v. Lee,
678 So. 2d 818, 821 (Fla. 1996). In deciding when the notice-clock began to run
on Rowe’s state law claims, the question is when the last element of each claim
occurred, or, to use the language of Lee, when the action first could have been
brought.
Turning to the negligent training and supervision claim first, we begin by
analogizing that claim to a convicted defendant’s claim against his criminal defense
attorney for legal malpractice. A recent Florida Supreme Court decision held that a
convict may not bring such a legal malpractice claim while his conviction is still
31
outstanding: appellate or post-conviction relief from the conviction is a necessary
element of that claim. Steele v. Kehoe, 747 So.2d 931, 933 (Fla. 1999). The court
listed five reasons for its holding:
(1) without obtaining relief from the conviction or sentence, the
criminal defendant’s own actions must be presumed to be the
proximate cause of the injury; (2) monetary remedies are inadequate to
redress the harm to incarcerated criminal defendants; (3) appellate,
postconviction, and habeas corpus remedies are available to address
ineffective assistance of counsel; (4) requiring appellate or
postconviction relief prerequisite to a malpractice claim will preserve
judicial economy by avoiding the relitigation of supposedly settled
matters; and (5) relief from the conviction or sentence provides a
bright line for determining when the statute of limitations runs on the
malpractice action.
Id.
Steele addressed the case of a still-incarcerated convicted defendant who was
attempting to sue his trial attorney, and it concluded that he could not do so until he
succeeded in having his conviction overturned. In a post-Steele case in which
Rowe was the plaintiff, Florida’s Fourth District Court of Appeals confirmed the
32
corollary: because a convict cannot sue for legal malpractice until he wins his
release, the statute of limitations on his malpractice claim does not begin to run
until that time. Rowe v. Schreiber, 725 So. 2d 1245, 1250 (Fla. 4th DCA 1999).
That is, because obtaining relief from the conviction and being released from prison
is an element of a convict’s legal malpractice claim, that malpractice claim cannot
accrue, and the statute of limitations cannot begin to run, until that element – release
– has taken place.
The question, then, is whether the Steele/Schreiber rule applies in this
context, to the requirement of timely notice of a negligent training and supervision
claim arising from a conviction. Could Rowe have brought his negligent training
and supervision claim against HRS and Satz before he was released? If not, then
the period for giving notice of the claim did not begin to run until Rowe’s release in
1994. Applying the factors relied on by Steele, we believe that, if a still-
incarcerated convict sued claiming that negligent training and supervision by
government agencies allowed social workers and prosecutors to secure his wrongful
conviction, Florida law would deem “the criminal defendant’s own actions . . . to be
the proximate cause of the injury.” Steele, 747 So. 2d at 933. We believe that for
the same five reasons the Florida Supreme Court in Steele required a convicted
defendant to obtain relief from his conviction before bringing a legal malpractice
33
claim, it would also require him to obtain relief from his conviction before he could
bring a monetary claim against those who investigated and prosecuted him. For
those purposes, there is no principled basis for distinguishing between a convicted
defendant’s claims against his attorney on the one hand, and his claims against
investigators and prosecutors on the other. So, we conclude that Rowe could not
have brought his negligent supervision claim until he was released. That means the
three-year period for giving notice of the claim did not start running until then,
because the statute does not require that notice be given until the claim has accrued.
Fla. Stat. ch. 768.28(6)(a). And it is undisputed that Rowe did give notice of the
claim within the requisite three years after his conviction had been set aside.
A similar analysis applies to Rowe’s spoliation claim. Applying the Steele
factors, it is clear that under Florida law Rowe would not have been allowed to
bring a spoliation claim based on the mishandling of evidence so long as the
resulting conviction stood. A court would have considered the conviction, and not
the spoliation, to be the proximate cause of his injuries. A spoliation claim, under
Florida law, alleges that the defendant’s negligent loss or destruction of evidence
impaired the plaintiff’s ability to prove a civil action. Hagopian v. Publix
Supermarkets, Inc., 788 So. 2d 1088, 1091 (Fla 4th DCA 2001). Thus, the injury
alleged is an injury to the plaintiff’s ability to prove his lawsuit. In Rowe’s case,
34
the civil action which he says has been impaired by the destruction or loss of
evidence is his section 1983 claim for malicious prosecution. Essentially, Rowe
contends that if Anderson, Ledegang, and Lazarus had not lost or destroyed
exculpatory evidence, he would have been able to rely on that exculpatory evidence
to help prove that he was arrested and prosecuted without probable cause.
The injury Rowe alleges in his spoliation claim is an injury to his ability to
prove that he was maliciously prosecuted and wrongfully convicted. However,
“without obtaining relief from the conviction or sentence, the criminal defendant’s
own actions must be presumed to be the proximate cause of the injury.” Steele, 747
So. 2d at 933. That is, until Rowe won his release, a court would have had to
presume that proximate cause of any impairment in his ability to prove he was
maliciously prosecuted was the fact that he was not, in fact, maliciously prosecuted,
but instead had been validly convicted as a consequence of his own actions. See,
e.g, Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla 1994) (under
Florida law, “bona fide termination” of the underlying criminal proceeding in favor
of the plaintiff is a necessary element of a malicious prosecution claim). Without
such a presumption there would be a real danger of the “relitigation of supposedly
settled matters,” – every convict would have a back door opportunity to undermine
his conviction by bringing a civil suit over how his investigators and prosecutors
35
had handled the evidence. Steele, 747 So. 2d at 933. Another way of stating this is
that the five reasons the Florida Supreme Court gave for its Steele decision apply
with as much force to a spoilation claim as to a legal malpractice claim (and, as we
have just explained, a negligent supervision claim).
Thus we believe that, under Steele, when a spoliation claim is based on the
loss or destruction of evidence that could have served to exculpate a criminal
defendant, Florida courts would require appellate or post-conviction reversal of the
sentence as a prerequisite for bringing the claim. And, as we have explained, it
follows from that proposition that the time for giving notice of the claim does not
begin to run until the sentence is set aside, i.e., the last element of the claim occurs.
Therefore the notice Rowe gave of his spoliation claim, coming as it did within
three years of his release, was not untimely. The district court erred in dismissing
Rowe’s spoliation claim on the ground that it was.12
Finally, we note that, on remand, the district court will have an opportunity to
reconsider whether it should retain jurisdiction over these state law claims or
dismiss them without prejudice so that these state-law issues can be decided in state
court. A district court has discretion to decline to exercise supplemental jurisdiction
12
That Rowe gave timely notice of his spoliation claim does not mean that it has merit, or
even that it necessarily would survive a motion to dismiss for failure to state a claim. Rowe’s
state law claims against HRS and Satz are before us on dismissal for untimeliness, and in
reversing that dismissal, all that we are deciding about those claims is that they were timely filed.
36
over the state law claims when:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons
for declining jurisdiction.
28 U.S.C. § 1367(c); see also Baggett v. First Nat’l Bank of Gainesville, 117 F.3d
1342, 1352-53 (11th Cir. 1997). In this case, (3) certainly applies and (1) may. The
district court thus had the discretion to decline to exercise supplemental jurisdiction
over the state law claims and dismiss them without prejudice. Instead, it dismissed
those claims with prejudice on untimely notice grounds, a dismissal that was
erroneous as we have just explained. On remand, however, the district court is free
to reconsider whether it will exercise its discretion to decline to exercise
supplemental jurisdiction to decide the state law claims.
Among the factors a district court should consider in exercising its discretion
are judicial economy, convenience, fairness, and comity. Baggett, 117 F.3d at 1353.
Both comity and economy are served when issues of state law are resolved by state
37
courts. See id. The argument for dismissing the state law claims in order to allow
state courts to resolve issues of state law is even stronger when the federal law
claims have been dismissed prior to trial. See id. (citing United Mine Workers v.
Gibbs, 383 U.S. 715, 726, 86 S. Ct.. 1130, 1139 (1966)).
Though we have made these observations, we are not by any stretch
suggesting that the district court abused its discretion by retaining jurisdiction over
the state law claims. We are simply pointing out that, because we are reversing the
dismissal for untimely notice of Rowe’s state law claims against HRS and Satz, on
remand the district court will have an opportunity, if it chooses, to revisit the
question whether to exercise its supplemental jurisdiction over these claims. The
decision on that matter should be and is vested in the sound discretion of the district
court.
III. CONCLUSION
The summary judgments in favor of Lazarus and Doss are AFFIRMED. The
dismissal of Rowe’s claims against Anderson is AFFIRMED. The dismissal of the
state law claims against HRS and Satz for untimely notice of claim is REVERSED
and this case is REMANDED to the district court for further proceedings on those
claims consistent with this opinion.
38
39