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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MICHAEL C. RUFFIN,

Plaintiff,

vs. Case No.: 4:09cv325-SPM/WCS

ROBIN F. FREEMAN-LOHAN,

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se and in forma pauperis, has filed a second

amended civil rights complaint, doc. 7. Plaintiff's complaint has been reviewed as is

required by § 1915(b)(1)(A).

Plaintiff is suing the Assistant State Attorney, Robin Freeman-Lohan, who

prosecuted him in 1997. Doc. 7. Plaintiff alleges that Defendant produced "no physical

evidence," failed to provide a victim, and failed to show the "essential elements of

charged crime." Plaintiff also alleges the Defendant "adduced false statements" and

testimony.
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Case No. 4:09cv325-SPM/WCS

Plaintiff was convicted of armed robbery with a firearm and sentenced to eleven

years in prison. The appeal process took many years, but Plaintiff was eventually

granted a new trial. Instead of again trying the case against Plaintiff, the State

dismissed the charges. 

Plaintiff seeks damages stemming from his conviction and alleged wrongful

incarceration. Plaintiff brings a claim for malicious prosecution "for commencing and

continuing criminal proceedings" against him in "reckless disregard for Plaintiff's

constitutional rights." Id. Plaintiff also seeks to bring a state law claim for the intentional

infliction of emotional distress. Id. 

Plaintiff was previously advised that prosecutors are absolutely immune from suit

under the civil rights statutes for their actions which are "intimately associated with the

judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct.

984, 994-995, 47 L.Ed.2d 128 (1976); Cook v. Houston Post, 616 F.2d 791, 793 (5th

Cir. 1980). Such actions include "initiating a prosecution and in presenting the State's

case." Imbler, 424 U.S. at 431, 96 S. Ct. at 995. Even if a prosecutor "knowingly

proffered perjured testimony and fabricated exhibits at trial, he is entitled to absolute

immunity from liability for doing so." Rowe v. City of Fort Lauderdale, 279 F.3d 1271,

1280 (11th Cir. 2002). 

All of Plaintiff's claims are against the Defendant for conduct performed as an

advocate of the State and in pursuit of a criminal prosecution. A prosecutor is protected

by absolute immunity for such claims. Jones v. Cannon, 174 F.3d 1271 (11th Cir.

1999); see also Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct. 2606, 125 L. Ed. 2d.

209 (1993) (explaining when prosecutors are protected by absolute immunity or only
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Case No. 4:09cv325-SPM/WCS

qualified immunity); Burns v. Reed, 500 U.S. 478, 492 111 S.Ct. 1934, 1942 (1991)

(same). Thus, Plaintiff's second amended complaint should be dismissed pursuant to

28 U.S.C. § 1915(e)(2)(B)(iii).

This Court could decline to exercise supplemental jurisdiction over Plaintiff's

supplemental state law claim for the intentional infliction of emotion distress. See 28

U.S.C. § 1367(d)(3). 

In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's second

amended complaint, doc. 7, be DISMISSED for seeking monetary relief against a

defendant who is immune from such relief, and that the order adopting this report and

recommendation direct the Clerk of Court to note on the docket that this cause was

dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).

IN CHAMBERS at Tallahassee, Florida, on September 28, 2009.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.