Long Ex Rel. Purvis v. Satz

Joanne LONG, as guardian of John Gordon Purvis, incompetent, Plaintiff-Appellant,

v.

Michael SATZ, individually and as State Attorney, for the Seventeenth Judicial Circuit, in and for
Broward County, Florida, Ralph Ray, Robert Carney, Barbara Barton, Defendants-Appellees.

No. 98-4669.

United States Court of Appeals,

Eleventh Circuit.

July 22, 1999.

Appeal from the United States District Court for the Southern District of Florida. No. 96-7156-CV-DTKH,
Daniel T.K. Hurley, Judge.

Before COX and BARKETT, Circuit Judges, and FAY, Senior Circuit Judge.

PER CURIAM:

Joanne Long, as guardian of John Gordon Purvis, challenges on this appeal the district court's order

granting defendants' Fed.R.Civ.P. 12(b)(6) motion to dismiss. The district court concluded that the

defendants were entitled to absolute immunity and that the complaint failed to state a claim upon which relief

can be granted. We affirm.

I. Facts

We take the facts from the complaint. In November 1983, Susan Hamwi was murdered in her home.

As a result, her infant daughter, Shane Hamwi, was left unattended for several days, and she died from

dehydration. During the course of the investigation, it was learned that Paul Hamwi, the victim's ex-husband,

had a "motive for the murders," (R.1-5 at 3), but the investigation focused on John Gordon Purvis, a neighbor

of the victims. Purvis was a mentally disabled adult, diagnosed as a non-violent schizophrenic.

Purvis was charged with murder in the first degree and murder in the second degree as a result of the

deaths of Susan and Shane Hamwi. He was convicted and was sentenced to life imprisonment in April 1985.

He appealed.
 In May of 1985, shortly after sentencing, and while Purvis's direct appeal was pending, the State

Attorney's office (and all of the defendants named here) received information indicating that Robert Beckett,

Sr., a close associate of the victim's ex-husband, had committed the murders. Michael Satz, the State

Attorney, and Barbara Barton, his investigator, conducted some additional investigation and learned that

Robert Beckett, Jr.'s girlfriend had told Colorado authorities that Robert Beckett, Jr. had implicated his father

in the murder of Susan Hamwi. Notwithstanding this information, Robert Carney, a prosecutor in the State

Attorney's office, instructed Barton to close the investigation. At that time, none of this exculpatory

information was disclosed to Purvis, his guardian or his attorney.

Purvis remained imprisoned for approximately nine years. Ultimately this exculpatory information

was discovered and a subsequent investigation established that Purvis was innocent. On joint motion of the

State and Purvis, a circuit judge set aside Purvis's conviction in 1993, and Purvis was freed. The actual

murderers were then prosecuted and convicted.

II. Procedural Background

In November 1996, Joanne Long brought suit under 42 U.S.C. § 1983 on behalf of John Gordon

Purvis, alleging that Michael J. Satz, individually and as State Attorney, Ralph Ray, Robert Carney, and

Barbara Barton violated Purvis's Brady1 rights by not turning over exculpatory information.

The complaint alleges that Michael J. Satz was the State Attorney for the 17th Judicial Circuit in and

for Broward County, Florida. Ralph Ray and Robert Carney were alleged to be Assistant State Attorneys.

Barbara Barton was alleged to be an investigator for Satz.

In November 1996 the defendants filed a motion to dismiss grounded upon prosecutorial immunity,

failure to state a claim, and various other defenses. In response, plaintiff argued that the defendants' failure

to disclose the exculpatory evidence was independent of, and subsequent to, their prosecutorial function, and

1
See Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
thus, they were not entitled to absolute immunity.2 The plaintiff's memorandum included a request for leave

to amend should the court be inclined to dismiss. The memorandum stated: "Recent discovery responses

obtained by Plaintiffs clearly illustrate the end of the prosecutorial efforts by Defendants, and should the

Court be inclined to dismiss the case on the basis of absolute immunity, Plaintiffs would respectfully request

that leave to amend b[e] granted so that additional facts now available to Plaintiffs may be alleged

demonstrating that the functional analysis to be employed does not support a grant of absolute immunity

under the facts of this case." (R.-17 at 8 (emphasis added).)

In March 1998, the court dismissed the complaint, concluding that the defendants were entitled to

absolute immunity by virtue of having been engaged in the prosecutorial function. The court's order stated:

Plaintiff asserts, in her opposition to the motion to dismiss, that she has information that the
defendants were serving in an investigative, non-prosecutorial capacity when they received the
exculpatory information. However, no such information is to be found in the complaint. Plaintiff
has not attempted to amend the complaint to incorporate such highly relevant information, nor does
she divulge the substance of the promised information in the opposition itself. In her opposition
memorandum, plaintiff conclusorily alleges that the defendants were no longer engaged in
prosecutorial functions, and that they had no "direct involvement" with the pending appeal.

....

The plaintiff ... has had ample time to either amend or seek leave to amend her pleadings. The court
will not now invite the plaintiff to submit another complaint, thereby forcing the defendants to litigate
a second motion to dismiss. Based upon the Amended Complaint, defendants' motion to dismiss and
plaintiff's opposition, it is the finding of the court that the prosecutors are entitled to absolute
immunity for their actions.

(R.-25 at 4-5.) This appeal followed.

III. Contentions of the Parties

The plaintiff contends that the district court erred in dismissing her complaint based on its conclusion

that the defendants were entitled to absolute immunity. Specifically, the plaintiff argues that the complaint

2
The plaintiff's memorandum conceded that the complaint failed to state a claim against the
investigator, Barton, on the authority of McMillian v. Johnson, 88 F.3d 1554, 1567, modified on reh'g,
101 F.3d 1363 (11th Cir.1996). McMillian notes that investigators satisfy their obligations under Brady
when they turn exculpatory information over to the prosecutor. Notwithstanding the plaintiff's concession
in the district court, the plaintiff named Barton in the notice of appeal. Any error as to Barton was
therefore invited, and we affirm as to Barton without further discussion. See 11th Cir. Rule 36-1.
sets forth that the defendants were acting in an investigative or administrative function, as opposed to a

prosecutorial function, and therefore not entitled to absolute immunity. The defendants, however, contend

that the district court properly dismissed the complaint because the complaint shows that they were acting

within their prosecutorial function.3 In the alternative, the plaintiff argues that the district court abused its

discretion by dismissing the complaint without granting leave to amend.

IV. Standard of Review

We review de novo the district court's order granting the defendants' motion to dismiss for failure

to state a claim. See McKusick v. City of Melbourne, 96 F.3d 478, 482 (11th Cir.1996). For the purpose of

determining whether the defendants are entitled to absolute immunity, we accept as true the allegations of

the complaint, together with any reasonable inferences that may be drawn therefrom. See Marrero v. City

of Hialeah, 625 F.2d 499, 502 (5th Cir.1980).

We review "[a] district court's decision to grant or deny leave to amend ... for abuse of discretion."

Forbus v. Sears Roebuck & Co., 30 F.3d 1402, 1404 (11th Cir.1994).

V. Discussion

A. Prosecutorial Immunity

Prosecutors performing "prosecutorial functions" receive absolute immunity and are therefore not

subject to suit under 42 U.S.C. § 1983. See Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128

(1976). Prosecutorial immunity may be asserted by a Rule 12(b)(6) motion, in which we ask if the allegations

of the complaint disclose activities protected by absolute immunity. See Marx v. Gumbinner, 855 F.2d 783,

789 (11th Cir.1988). In this case, we ask whether the complaint alleges that defendants were performing

"prosecutorial functions" when they learned of this exculpatory evidence. If the answer is yes, the defendants

are immune from suit.

3
The defendants also contend that this suit is barred by the 11th Amendment and that they are
entitled to qualified immunity; we reject the 11th Amendment argument, and do not reach the question of
qualified immunity.
 The complaint alleges that the defendants (other than Barton) were "State Attorneys." The complaint

explicitly alleges that the defendant Michael Satz was the State Attorney for the 17th Judicial District in

Broward County, Florida, and that "at all times material hereto was an individual authorized to and in fact

conducting the activities of the State Attorney in Broward County, Florida" pursuant to the Florida

Constitution and Florida statutes. (R.-5 at 1-2.) The complaint describes the defendant Ralph Ray as one who

at all material times served as Assistant State Attorney; the defendant Robert Carney is similarly described

as an Assistant State Attorney. (R.-5 at 2.) The information alleged to be exculpatory is said to be

information that "became known to the State Attorney's office." (R.-5 at 4.) No facts alleged in the complaint

show that the defendants (other than Barton) acted in a role other than that of prosecutors.

The district court concluded that "[t]he task of evaluating the credibility of the alleged exculpatory

information, and of determining its bearing on the trial and the prosecutor's decision whether to confess error

and agree to have the verdict set aside, no doubt requires the exercise of prosecutorial discretion." (R.-25 at

4.) We agree. We conclude that the district court did not err in granting the motion to dismiss based upon

absolute prosecutorial immunity.

B. Amended Complaint

The plaintiff contends that the district court abused its discretion by failing to allow her to amend

the complaint prior to dismissing the action. Federal Rule of Civil Procedure 15(a) provides that "leave [to

amend] shall be freely given when justice so requires." The rule as applied in this circuit is "[w]here a more

carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the

complaint before the district court dismisses the action with prejudice." Bank v. Pitt, 928 F.2d 1108, 1112

(11th Cir.1991). However, we consider whether the plaintiff's argument is foreclosed by her failure to

properly request leave to amend.

Filing a motion is the proper method to request leave to amend a complaint. Federal Rule of Civil

Procedure 7(b)(1) provides that "[a]n application to the court for an order shall be by motion which, unless

made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor,
and shall set forth the relief or order sought." (emphasis added). A motion for leave to amend should either

set forth the substance of the proposed amendment or attach a copy of the proposed amendment. See Wisdom

v. First Midwest Bank, 167 F.3d 402, 409 (8th Cir.1999) ("[P]arties should not be allowed to amend their

complaint without showing how the complaint could be amended to save the meritless claim.") In this case,

the plaintiff did not file a motion for leave to amend. The request for leave to amend was included in the

memorandum she filed in opposition to the motion to dismiss. Furthermore, she failed to attach the

amendment or set forth the substance of the proposed amendment. See Wisdom, 167 F.3d at 409. The

plaintiff had ample time to file a motion for leave to amend but failed to do so. Failure to properly request

leave to amend, when she had adequate opportunity and time to do so, precludes the plaintiff's argument on

appeal that the district court abused its discretion by denying her leave to amend her complaint. We conclude

that the district court did not abuse its discretion in denying plaintiff leave to amend her complaint.4 See

Burger King Corp. v. Weaver, 169 F.3d 1310, 1318 (11th Cir.1999) ("[A] trial court is not required sua sponte

to grant leave to amend prior to making its decision."); Bankers Ins. v. Florida Residential Prop. & Cas.

Joint Underwriting, 137 F.3d 1293, 1295 n. 3 (11th Cir.1998) ("The district court did not abuse its discretion

in not sua sponte inviting Bankers to amend."); Wolgin v. Simon, 722 F.2d 389, 395 (8th Cir.1983) (holding

that "to preserve the right to amend a complaint a party must submit a proposed amendment along with its

motion.")

VI. Conclusion

Based on the foregoing, we conclude that the district court properly concluded that the defendants

are entitled to absolute immunity.5 We also conclude that the district court did not abuse its discretion for

denying plaintiff leave to amend her complaint.

4
The defendants also contend that the district court did not abuse its discretion because any
amendment would have been futile. We need not address this question.

5
The complaint does not suggest what entity Michael Satz represents. At oral argument, the
plaintiff's attorney suggested that the entity was the State Attorney's office. However, the plaintiff cites to
no authority for the proposition that the State Attorney's office is an entity that may be sued. We
therefore assume that only individuals are properly named as defendants in this case.
AFFIRMED.