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 IN T H E U N IT E D STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

STEVEN P. GREER,

Plaintiff,

vs. Case No. 5:10cv140/RS/MD

ROBERT A. PELL,

Defendant.

REPORT AND RECOMMENDATION

This cause is before the court upon plaintiff’s civil rights complaint filed

pursuant to 42 U.S.C. § 1983. (Doc. 1). Plaintiff was granted leave to proceed in

forma pauperis (doc. 8), and has paid the initial partial filing fee. (Doc. 10). Upon

review of the complaint, the court concludes that plaintiff has not presented an

actionable claim and that dismissal of this case is warranted. 

Since plaintiff is proceeding in forma pauperis, the court must review his

amended complaint to determine if it is “(I) frivolous or malicious; (ii) fails to state

a claim on which relief may be granted; or (iii) seeks monetary relief against a

defendant who is immune from such relief.” 28 U.S.C.A. § 1915(e)(2)(B). The court

must read plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404

U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). A complaint is frivolous under section

1915(d) “where it lacks an arguable basis either in law or in fact.” Neitzke v.

Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). Dismissals

on this ground should only be ordered when the legal theories are “indisputably

meritless,” Id. at 327, 109 S.Ct. at 1833, or when the claims rely on factual allegations

that are “clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 31, 112 S.Ct. 1728,
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1733, 118 L.Ed.2d 340 (1992). Dismissals for failure to state a claim are governed by

the same standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass,

112 F.3d 1483, 1485 (11 Cir. 1997). In determining whether the complaint states a th

claim upon which relief may be granted, the court accepts all the factual allegations

in the complaint as true and evaluates all inferences derived from those facts in the

light most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483

(11 Cir. 1994). The complaint may be dismissed if the facts as pleaded do not state th

a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S.

544, 127 S.Ct. 1955, 1968-69, 1974, 167 L.Ed.2d 929 (2007) (retiring the negativelyglossed “no set of facts” language previously used to describe the motion to

dismiss standard and determining that because plaintiffs had “not nudged their

claims across the line from conceivable to plausible, their complaint must be

dismissed” for failure to state a claim). A complaint is also subject to dismissal

under Rule 12(b)(6) “when its allegations, on their face, show that an affirmative

defense bars recovery on the claim.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11 Cir. th

2003); Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11 Cir. 2001). th

Plaintiff is an inmate of the Florida penal system currently confined at Holmes

Correctional Institution. He is suing Robert A. Pell, an Assistant State Attorney,

claiming that Mr. Pell violated his procedural due process rights in connection with

a motion Pell filed in plaintiff’s underlying criminal case. Specifically, plaintiff

alleges that on November 13, 2009, Pell filed a motion to correct sentence seeking

to have plaintiff designated a sexual predator. Mr. Pell’s motion incorrectly alleged 

plaintiff had a prior conviction for lewd and lascivious battery. After Mr. Pell was

twice notified by plaintiff that that was incorrect, Pell failed to withdraw his motion

until April 7, 2010, after plaintiff filed a complaint with the Florida Bar. As relief for

the alleged constitutional violation, plaintiff seeks $30 million in punitive damages. 

(Doc. 1).

Case No: 5:10cv140/RS/MD
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It is apparent from the face of the complaint that prosecutorial immunity bars

recovery on plaintiff’s claim. A prosecutor is entitled to absolute immunity for all

actions performed within the scope of the prosecutor’s role as a government

advocate. Rivera v. Leal, 359 F.3d 1350, 1353 (11 Cir. 2004) (citing Buckley v. th

Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993)). In

determining whether a prosecutor’s challenged actions were taken in the scope of

his role as a state advocate, the court examines the function and nature of the act. 

Buckley, 509 U.S. at 269. The initiation and pursuit of a criminal prosecution,

appearances before the court and other in-court activity, including examining

witnesses and presenting evidence, are classic examples of actions that are taken

by a prosecutor in performing his role as a government advocate. See Rivera, 359

F.3d at 1353; see also Jones v. Cannon, 174 F.3d 1271, 1281 (11 Cir. 1999) (finding th

that absolute immunity extends to a prosecutor’s acts performed “in preparing for

the initiation of judicial proceedings for trial, and which occur in the course of his

role as an advocate for the State”); Elder v. Athens-Clarke County, Ga. Through

O'Looney, 54 F.3d 694, 695 (11 Cir. 1995) (“Aprosecutor’s decision to bring charges

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against a person, so long as the prosecutor is acting within the scope and territorial

jurisdiction of his office, is immune from an action for damages under § 1983.”

(citing Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)). For

qualifying acts, a prosecutor receives absolute immunity regardless of the

prosecutor’s motive or intent. See Grant v. Hollenbach, 870 F.2d 1135, 1138 (6 Cir. th

1989) (“Absolute prosecutorial immunity is not defeated by a showing that the

prosecutor acted wrongfullyor even maliciously. . . .”) (quotations omitted); see also

Rowe v. Fort Lauderdale, 279 F.3d 1271, 1279-80 (11 Cir. 2002) (holding that a

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prosecutor remains absolutely immune for knowingly proffering perjured testimony

and fabricated exhibits at trial).1

Absolute immunity may leave a “genuinely wronged defendant without civil redress against a

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prosecutor whose malicious or dishonest action deprives him of liberty.” Imbler, 424 U.S. at 427, 96

S.Ct. 984. However, remedies available during a prosecution and after trial and the threat of criminal

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In the instant case, plaintiff seeks damages against defendant Pell for actions

Pell took in his role as a government advocate, namely, moving to have plaintiff

designated a sexual predator. Even though plaintiff alleges Pell failed to promptly

withdraw the motion after learning there was no factual basis for it, Pell is,

nevertheless, entitledtoprosecutorial immunity. Thus, this suit must be dismissed.2

Accordingly, it is respectfully RECOMMENDED:

1. That this cause be DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(ii) for

plaintiff’s failure to state a claim upon which relief can be granted.

and professional sanction offer some deterrence and avenue of punishment for a prosecutor’s willful

conduct. See Imbler, 424 U.S. at 427-29, 96 S.Ct. 984. In this case, plaintiff pursued those remedies

and obtained his desired result – withdrawal of Pell’s motion.

Even if this action were not barred by prosecutorial immunity, it would still be subject to dismissal

2

under 28 U.S.C. § 1915(e)(2)(B)(ii). The Prison Litigation Reform Act provides, "No Federal civil action

may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or

emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. §

1997e(e). The Eleventh Circuit addressed the implications of § 1997e(e) and concluded that "the

phrase ‘Federal civil action' means all federal claims, including constitutional claims." Napier v.

Preslicka, 314 F.3d 528, 532 (11 Cir. 2002) (citing Harris v. Garner, 216 F.3d 970, 984-85 (11 Cir. 2000)

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(en banc)).

This action, brought by plaintiff under 42 U.S.C. § 1983, is a "Federal civil action" under this

definition. It is undisputed that plaintiff filed his complaint while imprisoned, and that the harm

complained of occurred while he was in custody. Plaintiff seeks punitive damages for the alleged

constitutional violation. However, the complaint alleges no physical injury resulting from defendant

Pell’s conduct. Therefore, while imprisoned plaintiff is prohibited under the PLRA from bringing his

claims for punitive damages, and this case would be dismissed. See Harris v. Garner, 190 F.3d 1279,

1287-88 (11 Cir. 1999), vacated in part and reinstated in part on reh'g, 216 F.3d 970 (11 Cir. 2000) (en

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banc) (affirming district court’s dismissal of claims for compensatory and punitive damages as barred

by § 1997e(e), but vacating and remanding with directions to enter dismissal without prejudice); Smith

v. Allen, 502 F.3d 1255, 1271 (11 Cir. 2007) (stating that under Eleventh Circuit case law, § 1997e(e)

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precludes an inmate’s claims for compensatory and punitive damages); Hale v. Secretary for Dep’t

of Corrections, No. 08-15754, 348 Fed. Appx. 489, 491-92 (11 Cir. Sept. 21, 2009) (same); Quinlan v.

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Personal Transport Servs., Co., No. 08-14121, 329 Fed. Appx. 246, 249 (11 Cir. June 5, 2009) (“Under

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section 1997e(e), a plaintiff may not recover monetary damages (compensatory or punitive) for mental

or emotional injury unless he also alleges that he suffered more than de minimis physical injury.”);

Frazier v. McDonough, No. 07-13986, 264 Fed. Appx. 812, 815 (11 Cir. Feb. 6, 2008) (same); Asad v.

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Crosby, No. 04-13825, 158 Fed. Appx. 166, 168 n. 1 (11 Cir. Nov. 9, 2005) (affirming dismissal of

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punitive damages claims under 42 U.S.C. § 1997e(e) where the plaintiff did not assert any actual

physical injury resulting from the defendants’ conduct).

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2. That the clerk be directed to close the file.

At Pensacola, Florida, this 14 day of January, 2011. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy thereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of objections shall be served upon all other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 5:10cv140/RS/MD