Robert R. Rowe v. Fort Lauderdale

[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.

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39