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
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 Brady
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 thus, they were not entitled to absolute immunity.
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:
(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 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.
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).
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
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
Based on the foregoing, we conclude that the district court properly concluded that the defendants are entitled to absolute immunity.