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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

EMMETT STROMAS,

Plaintiff,

vs. Case No. 3:11cv31/RV/EMT

STATE OF FLORIDA, et al., 

Defendants.

____________________________________/

ORDER

This cause is before the court on Plaintiff’s civil rights complaint filed pursuant to 42 U.S.C.

§ 1983 (Doc. 1). Leave to proceed in forma pauperis has been granted.

Upon review of the complaint, it is evident that the facts as presented fail to support a viable

claim for relief under § 1983 as to one or both of the named Defendants. The court will therefore

allow Plaintiff an opportunity to clarify his allegations in an amended complaint.

Plaintiff was an inmate of the Escambia County Jail when he filed this action (see Doc. 1 at

2). He has since been released (see Doc. 6). Plaintiff appears to name two Defendants in this action,

the State of Florida and Regina Balkom, an Assistant State Attorney (“ASA”) (id. at 1–2). Plaintiff

alleges from March 18, 2010 to January 5, 2011, he was illegally detained due to false charges filed

by ASA Balkom (id. at 5–6). He states ASA Balkom was provided with documentation which

showed he was innocent of the charges, but she prosecuted him regardless (id.). He states this

information consisted of “obscene behavior” by the alleged victim during Plaintiff’s first

appearance, and the victim’s providing inconsistent statements to police, in her deposition, and in

support of a motion for a temporary injunction (id. at 5). Plaintiff states Balkom permitted the

victim to commit perjury on numerous occasions and “failed to acknowledge a discovery violation”

(id. at 6). Plaintiff states he was acquitted of the charge or charges on January 6, 2011 (id. at 5). 
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In an unrelated claim, Plaintiff states he was denied proper medical treatment for brain surgery and

a vasectomy he received just prior to his incarceration (id. at 6). 

Plaintiff claims that Defendant Balkom’s conduct violated the constitutional prohibition

against excessive punishments and violated his constitutional rights to due process, equal

protection, and “fair compensation” (id. at 7). As relief, he seeks compensatory and punitive

damages (id.).

Initially, Plaintiff’s claims for damages against the State of Florida are barred. Plaintiff is

advised that the Eleventh Amendment is an absolute bar to suit for monetary damages by an

individual against a state or its agencies. See Edelman v. Jordan, 415 U.S. 651, 662–63, 94 S. Ct.

1347, 1355–56, 39 L. Ed. 2d 662 (1974). Absent waiver or express congressional abrogation,

neither of which is present in this case, the Eleventh Amendment prohibits Plaintiff’s suit against

the State of Florida in federal court. See Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S. Ct.

3099, 87 L. Ed. 2d 114 (1985).

Additionally, the doctrine of prosecutorial immunity bars Plaintiff’s claims against ASA

Balkom. In Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976), the Supreme

Court considered whether traditional common-law immunities for prosecutors, which derived from

immunities recognized for judges, applied to civil cases brought under 42 U.S.C. § 1983. The

Supreme Court concluded that they did. Id., 424 U.S. at 427–28 (quoting Gregoire v. Biddle, 177

F.2d 579, 581 (2d Cir. 1949) (L. Hand, J.) (“In this instance it has been thought in the end better to

leave unredressed the wrongs done by dishonest officers than to subject those who try to do their

duty to the constant dread of retaliation.”)). The Supreme Court has explained that the common law

gives absolute immunity in § 1983 actions for activities that are “‘intimately associated with the

judicial phase of the criminal process.’” Van de Kamp v. Goldstein, — U.S. —-, 129 S. Ct. 855,

860, 172 L. Ed. 2d 706 (2009) (quoting Imbler, 424 U.S. at 430); accord Hart v. Hodges, 587 F.3d

1288, 1294 (11th Cir. 2009).

Supreme Court decisions issued after Imbler established outer bounds on what activities

qualify for prosecutorial immunity. For example, prosecutorial immunity applies to a prosecutor’s

actions in initiating a prosecution and presenting the State’s case. See Imbler, 424 U.S. at 431. A

prosecutor is immune for malicious prosecution. See Malley v. Briggs, 475 U.S. 335, 342–43, 106

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S. Ct. 1092, 1097, 89 L. Ed. 2d 271 (1986). Prosecutors are immune for appearances before a court

and conduct in the courtroom, including examining witnesses and presenting evidence in support

of a search warrant during a probable cause hearing. See Burns v. Reed, 500 U.S. 478, 490–92, 111

S. Ct. 1934, 1942, 114 L. Ed. 2d 547 (1991); Kalina v. Fletcher, 522 U.S. 118, 126, 118 S. Ct. 502,

507–08, 139 L. Ed. 2d 471 (1997); see also Van de Kamp, 129 S. Ct. at 861.

Applying these principles, the Eleventh Circuit has emphasized that, “[a] prosecutor enjoys

absolute immunity from allegations stemming from the prosecutor’s function as advocate.” Jones

v. Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999). Such absolute immunity “extends to a

prosecutor’s acts undertaken in preparing for the initiation of judicial proceedings or for trial, and

which occur in the course of [her] role as an advocate for the State.” Id. (quotation marks omitted);

accord Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1279 (11th Cir. 2002). “Although

absolutely immune for actions taken as an advocate, the prosecutor has only qualified immunity

when performing a function that is not associated with [her] role as an advocate for the state.” 

Jones, 174 F.3d at 1281–82; accord Rowe, 279 F.3d at 1279–80 (prosecutor who proffered perjured

testimony and fabricated exhibits at trial is entitled to absolute immunity, but a prosecutor who

participated in the search of a suspect’s apartment is entitled to only qualified immunity).

Prosecutors have absolute immunity when “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 . . . .” Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir.

1979);1 accord Marx v. Gumbinner, 855 F.2d 783, 789 n. 10, 790 (11th Cir. 1988) (concluding that

prosecutors have absolute immunity for rendering legal advice to police officers concerning the

existence of probable cause to arrest).

Prosecutorial immunity does not apply, however, when the prosecutor acts outside the ambit

of activities “intimately associated” with the judicial process. See Hart, 587 F.3d at 1296. 

Generally, the Supreme Court has made clear that prosecutorial immunity may not apply when a

prosecutor is not acting as an officer of the court but is instead engaged in certain investigative or

1

 Decisions rendered by the United States Court of Appeals for the Fifth Circuit prior to September 30, 1981

are binding as precedent on the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).

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administrative tasks. See Van de Kamp, 129 S.Ct. at 861. These activities include conducting

investigative work before an arrest, see Buckley, 509 U.S. at 275–76, making statements to the

press, id. at 277, and providing legal advice to police regarding pre-indictment investigation

techniques, see Burns, 500 U.S. at 496. Additionally, prosecutorial immunity does not apply when

a prosecutor knowingly makes false statements of fact in an affidavit supporting an application for

an arrest warrant. See Kalina, 522 U.S. at 123. “Likewise, police officers do not have absolute

immunity for submitting supporting affidavits in their applications for arrest warrants.” Jones, 174

F.3d at 1282.

In the instant case, the actions of which Plaintiff complains, that is, allegedly filing false

charges, permitting the victim to commit perjury, “fail[ing] to acknowledge a discovery violation,”

and prosecuting Plaintiff despite information which suggested his innocence, are precisely the type

of activities to which the Supreme Court and Eleventh Circuit have held the doctrine of prosecutorial

immunity applies. Therefore, Plaintiff cannot succeed on his claims against Defendant Balkom. 

Plaintiff should carefully review the foregoing to determine whether he can state a claim for

relief against Defendants. If Plaintiff determines he does not wish to proceed with this case, he

should file a notice of voluntary dismissal. If Plaintiff determines he wishes to proceed with this

action, he must file an amended complaint clarifying his allegations. Plaintiff shall completely fill

out a new civil rights complaint form, marking it “Amended Complaint.” Plaintiff must limit his

allegations to claims related to the same basic incident or issue and name as Defendants only those

persons who are responsible for the alleged constitutional violations. Plaintiff must place their

names in the style of the case on the first page of the civil rights complaint form, and include their

addresses and employment positions in the “Defendants” section of the form. In the statement of

facts, Plaintiff should clearly describe how each named Defendant is involved in each alleged

constitutional violation, alleging the claims as to each Defendant in separately numbered paragraphs

and including specific dates of the alleged illegal acts. In the section titled “Statement of Claims,”

Plaintiff must state what rights or statutes he contends have been violated, and he must provide

reference to the facts supporting the claimed violations. Finally, in the “Relief Requested” section,

Plaintiff shall identify the form of relief he seeks from this court. Plaintiff is advised that the

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amended complaint must contain all of his allegations because once an amended complaint is filed,

all earlier complaints and filings are disregarded. Local Rule 15.1, Northern District of Florida.

Plaintiff should file the amended complaint with an original signature and keep an identical

copy for himself. He should not file a memorandum of law or otherwise provide citations to statutes

and cases, and he should not file a witness list or submit exhibits as evidentiary support for his

complaint. The court will notify Plaintiff when memoranda and exhibits are necessary, such as prior

to trial or in conjunction with a motion for summary judgment. Furthermore, Plaintiff should not

submit service copies of his complaint unless and until the court directs him to do so. Finally,

Plaintiff is advised that discovery is premature at this stage of the case, and Plaintiff should not

conduct any discovery without leave of court.

Accordingly, it is ORDERED:

1. The clerk of court is directed to forward to Plaintiff a civil rights complaint form for

use in actions under 42 U.S.C. § 1983. This case number should be written on the form. 

2. Plaintiff shall have THIRTY (30) DAYS in which to file an amended civil rights

complaint, which shall be typed or clearly written, submitted on court form, and marked “Amended

Complaint.” Alternatively, Plaintiff shall file a notice of voluntary dismissal within that time.

3. Failure to submit an amended complaint as instructed will result in a recommendation

of dismissal of this action.

DONE AND ORDERED this 16th day of March 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

Case No: 3:11cv31/RV/EMT