[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT 07/22/99 No. 98-4669 THOMAS K. KAHN ________________________ CLERK
D. C. Docket No. 96-7156-CV-DTKH
JOANNE LONG, as guardian of John Gordon Purvis, incompetent,
Plaintiff-Appellant,
versus
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.
________________________
Appeal from the United States District Court for the Southern District of Florida _________________________ (July 22, 1999)
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-
2 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.
1 See Brady v. State of Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
3 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.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
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 1063 (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.
4 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 sets forth that the defendants were
5 acting in an investigative or administrative function, as opposed to a prosecutorial
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT 07/22/99 No. 98-4669 THOMAS K. KAHN ________________________ CLERK
D. C. Docket No. 96-7156-CV-DTKH
JOANNE LONG, as guardian of John Gordon Purvis, incompetent,
Plaintiff-Appellant,
versus
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.
________________________
Appeal from the United States District Court for the Southern District of Florida _________________________ (July 22, 1999)
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-
2 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.
1 See Brady v. State of Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
3 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.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
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 1063 (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.
4 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 sets forth that the defendants were
5 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 Melborne, 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
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.
6 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 (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.
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
7 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
8 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. 1st 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
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.
9 sua sponte to grant leave to amend prior to making its decision.”); Bankers Ins. v.
Florida Prop. Cas. 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.”)
V. 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.
AFFIRMED.
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.