Rone v. Rich et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROBERT EARL RONE, 	)
Plaintiff, 	)
)
v. 	) CIVIL ACTION NO. 1:22-00509-TFM-N
)
ASHLEY M. RICH, et al., 	)
Defendants. 	)
REPORT AND RECOMMENDATIONS
This action is before the Court1 on a Fed. R. Civ. P. 12(b)6) motion to dismiss
with memorandum in support jointly filed by Defendants Ashley Rich and Amanda
Herren (collectively, the “DA Defendants”) on June 1, 2023. (Docs. 35, 36). The motion
is briefed and ripe for disposition. (Docs. 35, 36, 41, 45). For the reasons stated herein,
the undersigned RECOMMENDS the DA Defendants’ motion be GRANTED.
I. 	Procedural History
Plaintiff Robert Rone, who is proceeding pro se,2 initiated this action by filing
a complaint pursuant to 42 U.S.C. § 1983 on December 22, 2022. (Doc. 1). The
operative Second Amended Complaint (“SAC”) was filed May 6, 2023 with leave of
Court. (Docs. 27-31). The SAC brings five counts, collectively asserting federal and
state causes of action against varying groups of the six named defendants – former
Mobile County District Attorney Ashley Rich (“DA Rich”), former Assistant Mobile
1 The assigned District Judge has referred this action to the undersigned Magistrate Judge for
consideration and disposition or recommendation on all pretrial matters as may be appropriate under
28 U.S.C. § 636(b)(1) and in accordance with S.D. Ala. GenLR 72. (Docs. 12, 32).
2 While Rone is a pro se litigant, he is also an attorney and member of the Alabama State Bar. (Doc.
31, PageID.287). Thus, he does not receive the liberal construction typically afforded to pro se litigants.
Bowers v. Bd. of Regents of the Univ. Sys. of Ga., 509 F. App’x 906, 908 n.1 (11th Cir. 2013).
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County District Attorney Amanda Herren (“ADA Herren”), Mobile Police Department
(“MPD”) Detective Alex Lott (“Detective Lott”), Mobile County Metro Jail (“MCMJ”)
employees Kiesha Pettway, Felecia Crawford and Sophia Barnes – as well as one
“Jane Doe” and two groups of fictitious defendants. (Doc. 31). The SAC includes:
Count I: Asserts a Fourth Amendment malicious prosecution claim against DA
Rich, ADA Herren, Detective Lott and fictitious defendants3 in their respective
individual capacities.
Count II: Asserts a Fourth and Fourteenth Amendment supervisory liability
claim against DA Rich in her individual capacity.
Count III: Asserts a Fourteenth Amendment claim of deliberate indifference to a
serious medical need against Pettway, Crawford, Barnes, Jane Doe and fictitious
defendants4 in their respective individual capacities.
Count IV: Asserts a state law claim for outrage against DA Rich, ADA Herren
and Detective Lott in the respective individual capacities.
Count V: Asserts a state law claim for civil conspiracy against DA Rich, ADA
Herren and Detective Lott in their respective individual capacities.
(Id.). The DA Defendants filed a motion to dismiss with memorandum in support on
June 1, 2023. (Docs. 35, 36). Detective Lott filed an answer the same day. (Doc. 37).
A briefing schedule was entered on the DA Defendants’ motion, to which Plaintiff
timely responded and the DA Defendants timely replied. (Docs. 38, 41, 45). The
motion became ripe and was taken under submission June 24, 2023. (See Doc. 38).5
3 Plaintiff describes this group of fictitious defendants as “As Yet Unidentified Employees of the Mobile
County [DA’s] Office.” (Doc. 31, PageID.298).
4 Plaintiff describes this group of fictitious defendants as “As Yet Unknown Medical Personnel and
Jailers at Mobile County Metro Jail,” who “were responsible for delaying or denying medical treatment
for Rone while he was a pretrial detainee on May 7, 2021 at Mobile County Metro Jail.” (Doc. 31,
PageID.289, 304).
5 Defendants Pettway, Barnes and Crawford have also filed motions to strike, or in the alternative,
dismiss, Count III of the SAC as a shotgun pleading, which have been fully briefed, are ripe for
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II. 	Factual Background
The 	facts 	underlying 	this 	action 	involve 	not 	only 	Plaintiff’s 	arrest 	and
prosecution, but also a separate – albeit intertwined – criminal case against his son,
Thomas Rone. The relevant facts begin on July 7, 2019, when an altercation occurred
at the Rone family home between Thomas and his cousin Fernando. (Doc. 31,
PageID.289-98). Thomas stabbed Fernando during this incident, which resulted in
Thomas’s arrest and assault charges. (Id.). Thomas’s girlfriend Lauren Butts was on
site when the incident occurred and took Thomas away from the scene after the fact,
which led to Butts being charged as a co-defendant. (Id.). Butts accepted a youthful
offender plea in September 2020. (Id.). Thomas took his case to trial and was found
not guilty in December 2021. (Id.). Detective Lott, a Defendant here, was the
investigator assigned to Thomas’s assault case. (Id.).
On or about September 7, 2020, Butts approached Plaintiff regarding her plea
agreement because she had not understood its consequences and sought Plaintiff’s
help to get it overturned. (Id.). During this conversation, Butts said “the police had
tried to get her to say that Thomas Rone physically abused her.” (Id.). Plaintiff agreed
to speak with Butts’ attorney. (Id.). On September 18, 2020, Thomas and Butts were
at the Rone’s home when Plaintiff approached them in a bathroom “to discuss his
conversation with Butts’ attorney and to ask Butts about her previous statement that
police had tried to get her to say Thomas Rone physically abused her.” (Id.).6 This
disposition and will be addressed by separate order. (See Docs. 39, 44, 48, 51, 53, 54, 55, 56, 57).
6 The undersigned notes a discrepancy regarding when the “bathroom conversation” occurred. Plaintiff
fist states it was September 18, 2020, and later indicates it was in “March of 2020.” (Doc. 31,
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“bathroom conversation” – which Plaintiff recorded on his phone – ultimately became
the basis of charges against him for the alleged intimidation of Butts. (Id.).
Shortly thereafter, in October 2020, Thomas and Butts broke up. (Id.). Butts
began dating Isaiah Roberts, but in January 2021 (and unbeknownst to Roberts)
Thomas and Butts rekindled their relationship. (Id.). Facing questions from Roberts
about the calls and messages she was receiving from Thomas, Butts told Roberts that
Thomas was “bothering or harassing” her “[i]n order to cover-up her affair.” (Id.).
Roberts reported the alleged harassment to either the Mobile County District
Attorney’s Office (“DA’s Office”) or the MPD on May 3, 2021. (Id.). In response to
Roberts’ report, ADA Herren and Detective Lott went to interview Butts on May 4,
2021. (Id.). At the time of the Butts interview, Thomas’s assault case was ongoing,
and an immunity hearing was scheduled for the following week – on May 11, 2021 –
to determine whether Thomas acted in self-defense. (Id.). It was anticipated that
Plaintiff, Butts and Thomas would each testify at the May 11 hearing. (Id.).7
According to Plaintiff, during the Butts interview, and in the following days,
DA Rich, ADA Herren, Detective Lott and possibly others “conspired to fabricate and
prosecute a felony criminal charge against Robert Rone in order to discredit his
PageID.294-95, 298). The undersigned attributes the March 2020 date to scrivener’s error and accepts
as true for current purposes that this conversation occurred September 18, 2020.
7 The undersigned takes judicial notice of the attachments included with the DA Defendants’ motion
(Doc. 35-1, PageID.326-31), each of which are state court records from Plaintiff’s underlying criminal
case. See Keith v. DeKalb County, 749 F.3d 1034, 1041 n.18 (11th Cir. 2014) (taking judicial notice of
state court documents). The undersigned finds said documents to be central to Plaintiff’s claims and
their authenticity is not otherwise challenged, such that giving them consideration here does not
require conversion of this Rule 12(b)(6) motion into a motion for summary judgment. United States ex
rel. Osheroff v. Humana, Inc., 776 F.3d 805, 811 (11th Cir. 2015).
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testimony, or prevent him from testifying, at Thomas Rone’s immunity hearing on
May 11, 2021.” (Id.). Butts, whose affidavit describing this interview is included as
an attachment to the SAC, states that “[d]uring the conversation [with ADA Herren
and Detective Lott], I did not accuse Robert Rone of doing anything I thought was a
crime.” (Doc. 31-1). The Butts affidavit further provides:
(Id.). The day after interviewing Butts, Detective Lott authored a report.8 (Doc. 31).
According to this report, during the interview, Butts alleged Plaintiff and Thomas
“cornered” her in the bathroom on September 18, 2020 and “told her what to say in
support of a claim of self-defense by Thomas.” (Id.). Specifically, according to Lott’s
report, Plaintiff and Thomas “told her to say that Thomas was putting his pants on
when Fernando attacked him again, causing Thomas to act in [s]elf-defense.” (Id.).
8 This report is not contained in the record, but Plaintiff identifies it as being entitled “Incident #
M2210500411.” (Doc. 31, PageID.296).
3. 	During the conversation, I was asked if Robert Rone had ever tried to get me to change
my testimony regarding a 2019 assault case involving a fight between Thomas Rone and
his cousin, F emando.
4. 	I answered that he had not but that he had approached me and Thomas Rone in a bathroom
at Robert Rone' s house and that Robert Rone recorded the conversation on his cell phone.
5. 	At this point, Amanda Hen-en and Alex Lott were discussing possibly filing charges
against Thomas Rone and I heard them say that they needed to chru·geRobert too.
6. 	I explained to Amanda Herren and Alex Lott that Robert Rone had just asked some
questions about what I had told the police when I was interviewed after the 2019 assault.
7. 	During the conversation, I never said that Robert Rone threatened or intimidated me
regarding my testimony in the 2019 assault case or regarding anything else.
8. 	During the conversation, I never said that Robert Rone cornered me during the bathroom
conversation or that he tried to get me to change my testimony regarding the 2019 assault
case.
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Lott’s report also notes Plaintiff recorded the bathroom conversation. (Id.). However,
no one sought to acquire or listen to the recording before initiating charges. (Id.).
Based at least in part on Butts’ purported statements and Detective Lott’s
report, the DA’s Office compiled and issued a charging document,9 which was given
to Detective Lott and used to obtain a warrant for Plaintiff’s arrest on May 5, 2021.
(Doc. 31, PageID.296-97; Doc. 35-1, PageID.330). Plaintiff asserts the charging
document was based on false information because he did not intimidate Butts, Butts
did not accuse him of any wrongdoing, and the statements attributed to Butts in
Detective Lott’s report were fabricated. (Docs. 31, 31-1). Detective Lott appeared as
the complainant before Magistrate Shelly Lee in support of an arrest warrant based
on Plaintiff’s alleged intimidation of Butts and attempt to coerce her anticipated
testimony at the May 11 immunity hearing, in violation of Ala. Code § 13A-010-123.
(Doc. 35-1). Plaintiff avers Lott “and his co-conspirators” withheld exculpatory
information (i.e., the recorded bathroom conversation) in an effort to obtain this
warrant. (Doc. 31). Magistrate Lee authorized the arrest, which was executed the
morning of May 7, 2021 at Plaintiff’s home. (Docs. 31, 35-1). Thomas was also arrested
this morning on separate charges. (Doc. 31). On June 17, 2021, Plaintiff’s criminal
case was dismissed after Mobile County District Judge Georgie Hardesty heard the
bathroom recording and “found there was not probable cause in Rone’s case.” (Id.).
III. 	Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
9 Plaintiff explains the “charging document” referenced in his SAC is the “Case Review” document
attached to the DA Defendants’ motion. (Doc. 41, PageID.392; Doc. 35-1, PageID.330).
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complaint for “failure to state a claim upon which relief can be granted.” To survive
a motion to dismiss, a complaint must contain “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” (citation omitted)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged …
[This standard] asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. at 678. That is, “[f]actual allegations must be enough to raise a right
to relief above the speculative level,” and must be a “‘plain statement’ possess[ing]
enough heft to ‘sho[w] that the pleader is entitled to relief.’” Twombly, 550 U.S. at
555, 557 (second brackets in original). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.
at 678. At this stage, well-pleaded facts are accepted as true construed in the light
most favorable to the non-movant. Speaker v. United States HHS CDC & Prevention,
623 F.3d 1371, 1379 (11th Cir. 2010) (citation omitted).
IV. 	Analysis
Both DA Defendants are named in Counts I, IV and V. (Doc. 31). DA Rich is
the sole Defendant named in Count II. (Id.). The DA Defendants’ motion argues all
claims against them are due to be dismissed on absolute prosecutorial immunity
grounds. (Docs. 35, 36). Alternatively, they assert qualified immunity on the federal
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claims (Counts I & II) and state-agent immunity on state claims (Counts IV & V).
A. Absolute Prosecutorial Immunity
In civil cases brought under 42 U.S.C. § 1983, “prosecutors have absolute
immunity for all activities that are ‘intimately associated with the judicial phase of
the criminal process.’” Rehberg v. Paulk, 611 F.3d 828, 837 (11th Cir. 2010) (citations
omitted). The Supreme Court employs a “functional approach” to determine whether
an individual is entitled to absolute prosecutorial immunity. Kassa v. Fulton Cnty.,
Ga., 40 F.4th 1289, 1292 (11th Cir. 2022) (citing Burns v. Reed, 500 U.S. 478, 486
(1991)). This fact-specific inquiry “looks to ‘the nature of the function performed, not
the identity of the action who performed it.’” Buckley v. Fitzsimmons, 509 U.S. 259,
269 (1993) (citation omitted). See Kassa, 40 F.4th at 1294 (explaining the functional
approach “look[s] at whether immunity is justified for the specific function in
question”). Those asserting absolute prosecutorial immunity’s shield – here, the DA
Defendants – bear the burden of establishing its application based on the function(s)
in question. Burns, 500 U.S. at 486 (citation omitted).
Absolute 	immunity 	applies 	to 	a 	prosecutor’s 	activities 	“in 	initiating 	a
prosecution and in presenting the State’s case.” Rehberg, 611 F.3d at 837 (citing
Imbler v. Pachtman, 424 U.S. 409, 431 (1976)). Stated differently, this immunity will
apply for “acts undertaken… in preparing for the initiation of judicial proceedings or
for trial, and which occur in the course of his role as an advocate for the state.” Kassa,
40 F.4th at 1293 (citation omitted). Prosecutors have been found to be immune for
the initiation or continuation of a prosecution, appearances before grand juries or
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other judicial proceedings, the examination of witnesses and presentation of evidence.
See Rehberg, 611 F.3d at 837-38 (compiling examples). However, this immunity is not
limited to conduct inside the courtroom and typically applies to “preparation for those
activities, including the evaluation of evidence and information.” Ward v. Chafin,
2023 U.S. App. LEXIS 7326, *6 (11th Cir. 2023) (per curiam) (unpublished). See
Buckley, 509 U.S. at 273 (noting application of immunity to “the professional
evaluation of evidence assembled by the police and appropriate preparation for its
presentation at trial or before a grand jury after a decision to seek an indictment has
been made.”). The Eleventh Circuit has extended absolute immunity to prosecutors
for “filing an information without investigation, filing charges without jurisdiction,
filing a baseless detainer, offering perjured testimony, suppressing exculpatory
evidence, refusing to investigate complaints about the prison system, and threatening
further criminal prosecutions.” Kassa, 40 F.4th at 1293 (citations omitted).
However, if a prosecutor performs functions not associated with his or her role
“as an advocate for the state,” only qualified immunity is available. Hart v. Hodges,
587 F.3d 1288, 1295 (11th Cir. 2009) (citations omitted). For example, absolute
immunity does not attach when prosecutors engage in certain investigative or
administrative functions. Hoffman v. Office of the State Atty., 793 F. App’x 945, 950
(11th Cir. 2019) (per curiam) (unpublished) (citations omitted). See Rivera v. Leal,
359 F.3d 1350 1353 (11th Cir. 2004) (“A prosecutor functions as an investigator when
he searches for the clues and corroboration that might give him probable cause to
recommend that a suspect be arrested”) (cleaned up)); Rehberg, 611 F.3d at 842 (“A
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prosecutor loses the cloak of absolute immunity by stepping out of his role as an
advocate and performing ‘investigative’ functions more commonly performed by law
enforcement officers.” (citation omitted)). Prosecutorial immunity also does not attach
when an officer gives advice to police during a criminal investigation, when a
prosecutor makes statements to the press or when a prosecutor acts as a complaining
witness. Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009) (compiling cases).
The undersigned begins by setting out the functions and/or activities at issue.
Plaintiff’s allegations involve the DA Defendants’ role(s) in: (1) the Butts interview,
(2) an alleged conspiracy to present false testimony in support of a warrant for
Plaintiff’s arrest (with a goal of preventing his testimony at the May 11 immunity
hearing) and misleading the magistrate in order to do so, (3) the compilation of a
charging document and its issuance to Detective Lott in support of the warrant and
(4) the actual initiation and prosecution of Plaintiff, which he asserts was undertaken
despite a lack of probable cause. These functions are addressed in turn.
1. 	The Butts Interview
The DA Defendants characterize the Butts interview as one “conducted in
preparation or anticipation of criminal prosecution.” (Doc. 36, PageID.342). Pointing
to Mullinax v. McElhenney, 817 F.2d 711 (11th Cir. 1987) and Cook v. Houston Post,
616 F.2d 791 (5th Cir. 1980), they argue absolute immunity applies to ADA Herren’s
role in the interview “since this led to Plaintiff’s prosecution for intimidating a
witness.” (Doc. 36, PageID.342-43). As to DA Rich, they argue she was not personally
involved in the interview, and point to Van de Kamp and Hoffman, for their shared
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principle that “where a prosecutor is entitled to absolute immunity for certain
conduct, a supervisory prosecutor should likewise be entitled to absolute immunity
for supervision or training of that same conduct.” 793 F. App’x at 954 (citing Van de
Kamp, 555 U.S. at 345-46). (Doc. 36, PageID.341-45; Doc. 41, PageID.401). Plaintiff
contends that ADA Herren’s role in the Butts interview was not prosecutorial in
nature – rather, he asserts she performed an investigative, advisory and/or police
function by travelling with Detective Lott to Butts’ residence “to interview and
interrogate her.” (Doc. 41, PageID.399-400). He further argues ADA Herren and
Detective Lott’s discussion of “how they could bring a charge” against Plaintiff (which
occurred in Butts’ presence) exemplifies ADA Herren giving legal advice to Detective
Lott. (Doc. 41, PageID.401; Doc. 31-1, PageID.309). Plaintiff points to Rehberg, 611
F.3d at 838 and Burns, 500 U.S. at 492-93 for support. As to ADA Herren, both
arguments fail.
The context of the Butts interview is important, and several factual allegations
need be kept in mind. First, at the time of the interview, Thomas’s assault case was
ongoing, and the self-defense immunity hearing was set for the following week. (Doc.
31). Second, it was anticipated Butts would be called as a witness during this
proceeding and reasonable to infer she would likely be a witness at Thomas’s
impending trial. (Id.). Third, ADA Herren and Detective Lott went to interview Butts
in response to allegations made by Roberts that Thomas was harassing Butts. (Id.).
And fourth, when ADA Herren and Detective Lott walked into interview, they had no
reason to suspect Plaintiff of any wrongdoing. (Id.).
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The DA Defendants’ argument that ADA Herren’s role in the Butts interview
was prosecutorial because it was “conducted in preparation or anticipation of criminal
prosecution,” and “led to Plaintiff’s prosecution” lacks merit. (Doc. 36, PageID.342).
Plaintiff alleges that when ADA Herren and Detective Lott walked into the Butts
interview, they had no reason to believe he had committed any crime – rather, they
were there to discuss the allegations of harassment made by Roberts. (Doc. 31,
PageID.295). Thus, ADA Herren could not have sought to interview Butts “in
preparation or anticipation of” Plaintiff’s criminal prosecution, because there was no
criminal prosecution to prepare for or anticipate at that time.
However, Plaintiff’s assertion that ADA Herren was engaged in advisory,
investigative and/or police functions is equally unpersuasive. First, the facts alleged
do not support that ADA Herren engaged in the advisory function of “providing legal
advice to the police” in the same vein as the prosecutor at issue in Burns. 500 U.S. at
492-93. In Burns, the prosecutor was found not entitled to absolute immunity for
giving legal advice to officers regarding the use of hypnosis and existence of probable
cause to make an arrest. Id. Put differently, the Burns prosecutor advised officers on
what they could or could not do during an interview and subsequently advised
whether there was sufficient probable cause to make an arrest based on the fruits of
said interview. Id. Plaintiff does not assert ADA Herren advised Detective Lott in the
same way – rather, he asserts the “legal advice” came in the form of the two
“discussing… how they could bring a charge against Rone.” (Doc. 41, PageID.401).
(See Doc. 31-1, PageID.309). Such a discussion is more akin to the decision to initiate
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a prosecution against Plaintiff, which is well within a prosecutor’s function. Imbler,
424 U.S. at 421. See In re Wild, 994 F.3d 1244, 1260 (11th Cir. 2021) (describing
determinations of how, whether and when to initiate criminal charges as the
“essence” or prosecutorial discretion). Second, ADA Herren was not engaged in an
investigatory and/or police function during the interview – at least as it relates to
Plaintiff’s prosecution – because, as previously noted, he was not under any manner
of investigation at the time. Accordingly, absent any preconceived notion that
Plaintiff had committed a crime, there would not be any “clues and corroboration” to
search for as an officer typically would. Rivera, 359 F.3d at 1353.
Both parties fail to view the circumstances surrounding the Butts interview in
their totality by focusing solely on ADA Herren’s function as it relates to Plaintiff’s
subsequent prosecution. But the reason ADA Herren and Detective Lott were there
in the first place was to follow up on the allegation made by Roberts that Thomas was
harassing Butts. Put differently, Roberts had alleged that Thomas (the criminal
defendant) was harassing Butts (a key witness in his case). (Doc. 31, PageID.295,
298; Doc. 31-1; Doc. 36, PageID.342; Doc. 41, PageID.399). Thus, ADA Herren’s role
in this interview is more properly evaluated through the lens of Thomas Rone’s
prosecution, and when viewed through this lens, it is clear that ADA Herren was
acting within her prosecutorial role. Prosecutorial immunity applies not only to the
initiation of criminal prosecution, but also to its pursuit. Imbler, 424 U.S. at 431.
Here, determining if and how Butts’ testimony may have been influenced or otherwise
affected by the alleged harassment is well within the scope of Herren’s function as a
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prosecutor. See id. at n.32 (noting out of court efforts to control the presentation of
witness testimony to be within the function of a government advocate), id. at n.33
(noting specifically “which witnesses to call, and what other evidence to present” as
decisions made in the course of a prosecutor’s duties) and Buckley, 509 U.S. at 273
(distinguishing “advocate’s role in evaluating evidence and interviewing witnesses as
her prepares for trial” from investigatory function of “searching for the clues and
corroboration that might give him probable cause.”).10 Accordingly, the undersigned
finds ADA Herren is entitled to immunity for her role in the Butts interview.
As to DA Rich, Plaintiff does not allege her direct involvement in the Butts
interview. (Doc. 31). Rather, he asserts ADA Herren took part in the interview “with
permission or direction” from DA Rich, and that it would be “inconceivable” for ADA
Herren to have done so without DA Rich’s approval. (Doc. 31, PageID.298; Doc. 41,
PageID.401). Not only is such an allegation conclusory on its face, but Plaintiff’s
attempt to impute liability onto DA Rich for failing to supervise ADA Herren’s role in
this interview is foreclosed by Van de Kamp, 555 U.S. at 345-46 and Hoffman, 793 F.
App’x at 954, and DA Rich is entitled to share in the absolute prosecutorial immunity
afforded to ADA Herren.
2. 	Conspiracy to Present False Testimony
Plaintiff alleges that DA Rich, ADA Herren, Detective Lott and possibly others
10 The parties also fail to distinguish the roles played by ADA Herren and Detective Lott from one
another. While these two Defendants may have gone to interview Butts together, their respective
function(s) in doing so need not be the same. For example, Detective Lott – as the investigating officer
assigned to Thomas Rone’s case – could have been performing police and/or investigative functions
(i.e., determining whether Thomas Rone had committed a crime by harassing Butts) at the same time
ADA Herren – as a prosecutor – performed a prosecutorial function (i.e., seeking to determine whether
a witness had been tampered with or otherwise affected by the alleged harassment).
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in the DA’s Office (i.e., the fictitious defendants implicated in Count I) “conspired to
fabricate and prosecute a felony criminal charge” against Plaintiff in order to prevent
his testimony at the May 11 immunity hearing. (Doc. 31, PageID.296). Plaintiff
alleges the conspiracy went like this: (1) during the Butts interview, ADA Herren
decided to initiate charges against Plaintiff (after “discussing” this decision with
Detective Lott), despite a lack of probable cause, (2) after the interview, Detective
Lott prepared a report including false statements attributed to Butts, (3) while ADA
Herren (and possibly others) – with either the consent or acquiescence of DA Rich –
compiled a charging document based in part on the same false statements, (4) the
charging document was given to Detective Lott, (5) who took it to Magistrate Lee in
support of a warrant, and (6) because Detective Lott knew the statements were false,
he misled the Magistrate, which (7) resulted in the malicious prosecution asserted by
Count I. (See Doc. 31). The DA Defendants argue that, even if true, their conduct in
this process remains protected by absolute prosecutorial immunity pursuant to Hart
v. Hodges, 587 F.3d 1288 (11th Cir. 2009), Jones v. Cannon, 174 F.3d 1271 (11th Cir.
1999), Rehberg, 611 F.3d 828, Rowe v. Fort Lauderdale, 279 F.3d 1271 (11th Cir.
2002) 	and 	Mastroianni 	v. 	Bowers, 	173 	F.3d 	1363 	(11th 	Cir. 	1999). 	(Doc. 	36,
PageID.343-44). The undersigned agrees.
The decision to initiate charges against a criminal defendant is clearly a
prosecutorial function. Imbler, 424 U.S. at 431. And the motivations for doing so are
not relevant to the functional analysis. See Captain Jack’s Crab Shack, Inc. v. Cooke,
2022 U.S. App. LEXIS 26523, *24-25 (11th Cir. 2022) (per curiam) (unpublished)
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(“While a prosecutor’s motives may be relevant to whether a civil rights plaintiff has
stated a claim, they are not relevant to determining whether absolute immunity
applies.”). Further, compilation and issuance of charging documents or obtaining a
warrant for Plaintiff’s arrest are actions fitting squarely within a prosecutor’s
function. Imbler, 424 U.S. at 431. See Watkins v. Dubreuil, 820 F. App’x 940, 945
(11th Cir. 2020) (per curiam) (unpublished) (“A prosecutor is entitled to absolute
immunity for… the filing of charges”) (citing Hart, 587 F.3d at 1295)). This remains
the case even if a prosecutor’s actions are predicated upon false statements. See
Jarallah v. Simmons, 191 F. App’x 918, 921 (11th Cir. 2006) (per curiam) (affirming
dismissal on prosecutorial immunity grounds where “complaint alleged defendants
initiated baseless charges against him”); Hoffman, 793 F. App’x at 950 (no liability
for prosecutor’s initiation and continuation of a prosecution “even assuming he lacked
probable 	cause 	at 	the 	outset 	and 	pursued 	the 	prosecutions 	after 	receiving
overwhelming exculpatory information”); Rowe v. Fort Lauderdale, 279 F.3d 1271,
1279-80 	(11th 	Cir. 	2002) 	(noting 	prosecutorial 	immunity 	applies 	“even 	if 	[a
prosecutor] knowingly proffered perjured testimony and fabricated exhibits at trial”);
Hart, 587 F.3d at 1295 (compiling cases).
Each of the actions allegedly taken by ADA Herren in pursuit of this conspiracy
are, by their function(s), prosecutorial in nature.11 Moreover, the Eleventh Circuit
11 To the extent Plaintiff alleges ADA Herren’s direct involvement in the fabrication of Butts’ statement
itself, the undersigned finds persuasive the Rehberg Court’s distinction between “cases involv[ing] a
particular discrete item of physical or expert evidence that was falsely created,” and that Court’s
decision to extend absolute immunity to prosecutors “accused of fabricating together only the
testimony Paulk later gave to the grand jury.” 611 F.3d at 842. Here, the fabrication alleged by
Plaintiff does not involve any physical or expert evidence; rather, it is solely Butts’ statements that
were allegedly fabricated in Detective Lott’s report.
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has made plain that “absolute immunity applie[s] equally both to the false testimony
itself and to the alleged conspiracies to present false testimony,” because to allow
otherwise “would be to permit through the back door what is prohibited through the
front.” Rehberg, 611 F.3d at 841 (citing Jones, 174 F.3d at 1289)). See Rowe, 279 F.3d
at 1282 (“It would be cold comfort for a prosecutor to know that he is absolutely
immune from direct liability for actions taken as a prosecutor, if those same actions
could be used to prove him liable on a conspiracy theory involving the conduct for
which he was not immune… [t]hat is why acts for which a prosecutor enjoys absolute
immunity may not be considered as evidence of the prosecutor’s membership in a
conspiracy for which the prosecutor does not have immunity.”). Accordingly, ADA
Herren is entitled to prosecutorial immunity for any role she may have had in the
presentation of false testimony, or a conspiracy to do the same.
As to DA Rich, Plaintiff’s allegations are again based largely upon her
supervisory role of ADA Herren. (See Doc. 31). And because ADA Herren is entitled
to prosecutorial immunity for her role in this alleged conspiracy, DA Rich’s liability
under this theory is again foreclosed by Van de Kamp and Hoffman. 555 U.S. at 345-
46; 793 F. App’x at 954. To the extent Plaintiff asserts her direct involvement in this
alleged conspiracy, it is for the same acts that are protected by immunity (i.e.,
obtaining a warrant, issuing charging documents or allowing either to occur). (Id.).
Accordingly, DA Rich is entitled to prosecutorial immunity.
3. 	Compilation of a Charging Document, Obtaining a Warrant and Initiating
Plaintiff’s Prosecution
As previously stated, each of these actions are prosecutorial by their nature.
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Imbler, 424 U.S. at 431. Accordingly, both DA Rich and ADA Herren will be entitled
to prosecutorial immunity for their role(s) in the same. Plaintiff makes several
additional arguments intertwined with these functions that require mentioning here.
First, Plaintiff stresses there was never probable cause to have him arrested.
(Doc. 31, PageID.298-302). Pointing to the Buckley Court’s statement that “[a]
prosecutor neither is, nor should consider himself to be, an advocate before he has
probable cause to have anyone arrested,” 509 U.S. at 274, he argues that because
probable cause was lacking in toto, neither ADA Herren nor DA Rich ever performed
a prosecutorial function because absent probable cause, a prosecutor categorically
cannot be considered an “advocate for the state.” (Doc. 41, PageID.397-404). The
undersigned does not read Buckley to stand for such a sweeping proposition. Indeed,
that Court went on to clarify that there is “a common-law tradition of immunity for a
prosecutor’s decision to bring an indictment, whether he has probable cause or not.”
509 U.S. at 274, n.5. See also, Hoffman, 793 F. App’x at 950 (“[U]nder our binding
caselaw, 	[a 	prosecutor] 	cannot 	be 	held 	liable 	for 	initiating 	and 	continuing
prosecutions against the plaintiffs, even assuming he lacked probable cause at the
outset and pursued the prosecutions after receiving overwhelming exculpatory
evidence.”) (citing Hart, 587 F.3d at 1295)).
Second, Plaintiff argues ADA Herren essentially acted as a complaining
witness by compiling the charging document that was then given to Detective Lott in
support of a warrant because “it served the same purpose” as a complaining witness
would. (Doc. 41, PageID.400). Under Kalina, a prosecutor serves as a complaining
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witness – and thus, acts outside of a prosecutor’s function – when she “personally
attest[s] to the truth” of relevant allegations in support of a warrant. 522 U.S. at 129.
The “critical question,” per Kalina, is “whether [the prosecutor] was acting as a
complaining witness rather than a lawyer when she executed the certification ‘under
penalty of perjury.’” Id. Here, the complaining witness function was performed by
Detective 	Lott, 	not 	ADA 	Herren. 	(Doc. 	35-1; 	Doc. 	31, 	PageID.301; 	Doc. 	41,
PageID.391). 	It 	was 	Detective 	Lott 	who 	appeared 	as 	the 	complainant 	before
Magistrate Lee, and he was the one who signed the certification under penalty of
perjury. (See Doc. 35-1, PageID.326). Merely compiling a charging document is not
the same as “personally attesting to the truth” of the allegations set out therein
“under penalty of perjury.” Kalina, 522 U.S. at 129. The charging document itself
make no affirmation of its truthfulness and contains no penalty of perjury language.
(See Doc. 35-1, PageID.330). The fact that ADA Herren may have authored the
charging document, which was then given to Detective Lott in support of a warrant,
does not render ADA Herren, as the document’s author, to be a complaining witness
under 	Kalina. 	Accordingly, 	Plaintiff 	has 	failed 	to 	establish 	that 	ADA 	Herren
functioned as a complaining witness.
Third, Plaintiff faults the DA Defendants for not seeking out the recording of
the bathroom conversation before initiating his prosecution, as it was “readily
available” and “would have proven Rone’s innocence.” (Doc. 31, PageID.297-99).
Plaintiff avers this failure is tantamount to “intentionally disregarding pertinent
exculpatory evidence.” (Id.). However, it is not a prosecutor’s function to corroborate
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witness statements or seek out potentially exculpatory information prior to the
initiation of a prosecution – indeed, had the DA Defendants done what Plaintiff now
criticizes them for not doing, they would have performed an investigative function
typically reserved for law enforcement.12 See Rivera, 359 F.3d at 1353 (“A prosecutor
functions as an investigator when he ‘searches for the clues and corroboration that
might give him probable cause to recommend that a suspect be arrested.’” (citing
Buckley, 509 U.S. at 273)). Accordingly, the DA Defendants are entitled to immunity
for initiating Plaintiff’s prosecution prior to obtaining the recording.
In sum, the undersigned finds ADA Herren is entitled to absolute prosecutorial
immunity for each of the activities in which she was involved. Further, because DA
Rich’s liability as to each of these activities is tied to her role as ADA Herren’s
supervisor, the undersigned finds DA Rich to also be entitled to prosecutorial
immunity for her involvement in the same pursuant to Van de Kamp and Hoffman.
555 U.S. at 345-46; 793 F. App’x at 954.
B. Count II: Supervisory Liability Claim
To the extent Plaintiff seeks to hold DA Rich liable as ADA Herren’s supervisor
for the activities discussed above, such claims are foreclosed by Van de Kamp and
Hoffman. 555 U.S. at 345-46; 793 F. App’x at 954. However, Plaintiff’s Count II
appears to cast a wider net than simply alleging DA Rich failed to supervise ADA
Herren. (See Doc. 31, PageID.303). Rather, this cause of action alleges DA Rich
“implement and condoned” an official policy, custom or practice of allowing her
12 The same rationale applies to Plaintiff’s assertion that ADA Herren should have disbelieved Butts
because she was an unreliable witness. (See Doc. 31, PageID.297).
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subordinates to determine probable cause “without first having a neutral and
detached judge or magistrate review the facts.” (Id.). Specifically, Plaintiff maintains
the DA’s Office would determine probable cause and issue charging documents to law
enforcement, who would then present the documents to “untrained and unqualified”
magistrates who had been “instructed to issue a warrant if a charging document was
presented to them,” such that the magistrates merely acted as a “rubber stamp” for
the DA’s Office. (Doc. 31, PageID.300). Plaintiff also characterizes this as a “policy of
bypassing a neutral and detached Magistrate or Judge and allowing the [DA’s] Office
to control the warrant process.” (Doc. 41, PageID.394). Plaintiff alleges DA Rich is
the “ultimate policymaker” behind this policy, custom or practice, which has resulted
in deliberate indifference to citizen’s constitutional rights, including his own. (Doc.
31, PageID.287, 303).
The standard for imposing supervisory liability in § 1983 actions is “extremely
rigorous.” Piazza v. Jefferson Cty., 923 F.3d 947, 957 (11th Cir. 2019) (citation
omitted). As the Eleventh Circuit explained in Gray v. Bostic:
Supervisory 	officials 	cannot 	be 	held 	liable 	under 	§ 	1983 	for 	the
unconstitutional actions of their subordinates based on respondeat
superior liability. Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir.
1999). Instead, supervisors can be held personally liable when either (1)
the supervisor personally participates in the alleged constitutional
violation, or (2) there is a causal connection between the actions of the
supervisor and the alleged constitutional violation. Id.
458 F.3d 1295, 1308 (11th Cir. 2006) (footnote omitted). Absent allegations of direct
or personal participation in the alleged constitutional violation – of which there are
minimal 	concerning 	DA 	Rich 	(and 	such 	allegations 	are 	otherwise 	cloaked 	in
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prosecutorial 	immunity, 	explained 	supra.) 	– 	Plaintiff 	must 	establish 	a 	causal
connection between Rich’s actions and the alleged constitutional violation(s). Piazza,
923 F.3d at 957. To establish the requisite casual connection, a plaintiff must
“demonstrate[] that a supervisor’s policy or custom resulted in ‘deliberate indifference
to constitutional rights.’” Id. (citation and footnote omitted). A plaintiff can also point
to the absence of a policy resulting in a violation of constitutional rights. Id. (citation
omitted). “Either way, though, to prove that a policy or its absence caused a
constitutional harm, a plaintiff must point to multiple incidents, or multiple reports
of prior misconduct by a particular employee.” Id. (internal citations omitted). See
Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (“The necessary causal
connection 	can 	be 	established 	‘when 	a 	history 	of 	widespread 	abuse 	puts 	the
responsible supervisor on notice of the need to correct the alleged deprivation, and he
fails to do so.’”). Further, a causal connection can be established “when facts support
‘an inference that the supervisor directed the subordinates to act unlawfully of knew
that the subordinates would act unlawfully and failed to stop them from doing so.’”
Cottone, 326 F.2d at 1360 (citation omitted)).
The DA Defendants contend Plaintiff fails to establish a supervisory liability
claim against DA Rich for three reasons. First, they argue Plaintiff fails to plausibly
allege DA Rich’s personal participation in any alleged constitutional violation(s), and
that to the extent Plaintiff has done so, such allegations are conclusory and
insufficient pursuant to Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013). (Doc.
36, PageID.350-51). Second, they argue Plaintiff has not alleged facts sufficient to
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indicate a pattern of abuses of which DA Rich was on notice and otherwise ignored.
(Id.). And third, they characterize Plaintiff as “alleg[ing] only that Rich had a policy
of being aware that magistrates were untrained and unqualified,” and argue that
because DA Rich has no control over the training of magistrates – who are part of a
separate branch of government – she cannot be liable for failure to supervise. (Id.).
Defendants are correct on each point.
Plaintiff asserts a causal connection exists here because it is reasonable to infer
DA Rich “formulated and condoned the policy of bypassing a neutral and detached
Magistrate of Judge and allowing the [DA’s] Office to control the warrant process.”
(Doc. 41, PageID.394). However, Plaintiff offers no facts to support this inference
apart from a conclusory assertion that it is “inconceivable” for an ADA like Herren to
have taken such actions “without approval” from Rich. (Doc. 41, PageID.410).
Plaintiff essentially argues DA Rich is causally connected solely by virtue of her role
as the DA, and such an assertion is insufficient to make the requisite connection. See
McCullough 	v. 	Finley, 	907 	F.3d 	1324, 	1334 	(11th 	Cir. 	2018) 	(explaining 	that
“allegations that government officials were the ‘principal architect’ and ‘instrument[]’
behind 	an 	unlawful 	policy, 	without 	supporting 	allegations, 	are 	conclusory”);
Franklin, 738 F.3d at 1250-51. This alone is a sufficient basis to dismiss Count II.
However, Plaintiff also fails to state a supervisory liability claim because “[a] single
incident of a constitutional violation is insufficient to prove a policy or custom.”
Piazza, 923 F.3d at 957. The allegations of Plaintiff’s SAC relate solely to the single
incident in which he was involved, which is insufficient to establish a custom or
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practice, let alone one which could impute liability onto DA Rich.
C. State Law Claims (Counts IV & V)
Plaintiff’s state law claims for outrage and civil conspiracy are also due to be
dismissed on immunity grounds. Both causes of action are predicated upon the same
facts implicated by Plaintiff’s federal claims, and the Alabama Supreme Court has
held that the immunity afforded to prosecutors under state law is “at least as broad
as immunity under a § 1983 action.” Bogle v. Galanos, 503 So. 2d 1217, 1219 (Ala.
1984). See also, Walker v. Tillman, 55 So. 3d 1214, 1217 (Ala. Ct. Civ. App. 2010)
(same); Pardue v. City of Saraland, 2011 U.S. Dist. LEXIS 4184, *18, n.3 (S.D. Ala.
2011) (same). Thus, because the DA Defendants are entitled to absolute prosecutorial
immunity for their alleged involvement in the federal causes of action as discussed
above, they will similarly be entitled to absolute immunity for the state law claims.
V. Conclusion
For the reasons stated herein, the undersigned RECOMMENDS the DA
Defendants’ motion to dismiss be GRANTED, such that Count II be DISMISSED
with prejudice in its entirety and that Counts I, IV, and V be DISMISSED with
prejudice as it relates to Defendants Amanda Herren and Ashley Rich.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the manner
provided by law. Any party who objects to this recommendation or anything in it
must, within 14 days of the date of service of this document, file specific written
objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b);
S.D. Ala. GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-
1, “[a] party failing to object to a magistrate judge's findings or recommendations
contained in a report and recommendation in accordance with the provisions of 28
U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order
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based on unobjected-to factual and legal conclusions if the party was informed of the
time period for objecting and the consequences on appeal for failing to object. In the
absence of a proper objection, however, the court may review on appeal for plain error
if necessary in the interests of justice.” In order to be specific, an objection must
identify the specific finding or recommendation to which objection is made, state the
basis for the objection, and specify the place in the Magistrate Judge’s report and
recommendation where the disputed determination is found. An objection that merely
incorporates by reference or refers to the briefing before the Magistrate Judge is not
specific.
DONE this the 9th day of August 2023.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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