Rowe v. City of Fort Lauderdale

279 F.3d 1271

Robert R. ROWE, Plaintiff-Appellant, v. FORT LAUDERDALE, The CITY OF, a municipal corporation, Blackburn, individually and as police officer of the City of Fort Lauderdale, et al., Defendants-Appellees.

No. 00-16361.

United States Court of Appeals, Eleventh Circuit.

January 23, 2002.

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Sharon C. Degnan, Diane H. Tutt, Diane H. Tutt, P.A., Fort Lauderdale, FL, for Plaintiff-Appellant.

Martin Alan Feigenbaum, Elizabeth M. Rodriguez, Miami, FL, Glenn J. Webber, Law Office of Bohdan Neswiacheny, Charles Melvin, Thomas C. Mielke, Atty. Gen., Fort Lauderdale, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON and CARNES, Circuit Judges, and MUSGRAVE^*, Judge.

CARNES, Circuit Judge:

Robert Rowe and Cynthia Doss were married in 1974. The record in this case does not show how long they were happy together, but it does show that their marriage ended in bitterness and rancor that has not faded in the two decades since they were divorced in 1981. The couple had one daughter, and a dispute over custody of the child became the centerpiece of their disagreements during and after the divorce. In the midst of the dispute over child custody, the mother reported that the girl, then age nine, had accused her father of molesting her. The daughter repeated those accusations to the authorities and in testimony at Rowe's trial, and Rowe was convicted and sentenced in 1984 to serve life in prison for the sexual battery of his daughter. However, in 1994, after he had served ten years of his sentence, Rowe succeeded in obtaining an order setting aside his conviction on the grounds of ineffective assistance of counsel.

Having secured his release, Rowe filed in federal district court a lawsuit raising federal and state law claims against some of the people involved in accusing, investigating, and prosecuting him. Five of the defendants Rowe did sue are involved in this appeal. They are: 1) Cynthia Doss, Rowe's ex-wife, who initially reported the alleged abuse to authorities; 2) Sharon Anderson, a state child services worker who investigated Doss's report of abuse; 3) the Florida Department of Health and Rehabilitative Services (HRS),¹ which was Anderson's employer at the time she investigated the daughter's story; 4) Joel Lazarus, the prosecutor who obtained Rowe's indictment and conviction; and 5) Michael Satz, in his official capacity as the State Attorney for Broward County, because he was Lazarus's employer at the time of the prosecution.

Each of these defendants prevailed against Rowe in the district court either on motions to dismiss or motions for summary judgment, and he now appeals the resulting judgments in their favor. For reasons we will discuss, we are going to affirm the district court's grant of summary judgment on the section 1983 claims against Doss and Lazarus and its dismissal of the claim against Anderson for insufficient service of process. But we are going to reverse the district court's dismissal of the state law claims against Satz and HRS and remand those claims to the district court for further proceedings.

I. BACKGROUND

A. PROCEDURAL HISTORY

Rowe's conviction for capital sexual battery was set aside by a state court in 1994 on the grounds of ineffective assistance of counsel at his trial in 1984.² The local prosecutor attempted to retry Rowe but his daughter, then in her twenties, was unwilling to testify, and the trial court ruled that her testimony from the first trial could not be used in any retrial of Rowe. As a result, there was no retrial; the charges against Rowe were dismissed.

Three years after his release, in 1997, Rowe filed this lawsuit in federal district court against Doss, Anderson, and Lazarus, among others, for their roles in investigating, arresting, and prosecuting him in 1984. He alleged that they had withheld or destroyed material evidence, and had fabricated and planted false evidence and used false testimony in order to secure his wrongful conviction. He further alleged that they had conspired together to achieve their nefarious goal. (Rowe did not sue his daughter, whose allegedly false testimony was an essential part of the conspiracy.) Rowe brought malicious prosecution and conspiracy claims under 42 U.S.C. § 1983 against Lazarus, Anderson, and Doss. He also brought two state law claims, one for negligent loss or destruction of evidence and the other for negligent supervision and training, against both Michael Satz in his official capacity as the State Attorney for Broward County (Lazarus's employer), and the Florida Department of Health and Rehabilitative Services (Anderson's employer).³

All of the defendants filed motions to dismiss. The district court did dismiss the state law claims against Satz and HRS, finding that Rowe had not timely filed the notice required under Florida law to invoke the state's statutory waiver of sovereign immunity. The district court denied Lazarus's and Doss's motions to dismiss.⁴ As for Anderson, the district court ruled that she had not been properly served, quashed the attempted service on her, and gave Rowe 30 days in which to effect proper service. Rowe then unsuccessfully attempted to serve Anderson via letters rogatory in Australia, where he believed she was residing. After that effort failed, Rowe attempted substituted service by serving the Florida Secretary of State and mailing a certified copy of the Second Amended Complaint to Anderson at the Australian address that had been provided by her trial counsel. Anderson filed a motion to dismiss, asserting that she had not been properly served. The district court agreed, quashed the substituted service on Anderson, and dismissed Rowe's claims against her.

Lazarus and Doss then each filed summary judgment motions. The district court granted Doss's motion in August 1999, and granted Lazarus's motion in August 2000. Sandra Ledegang, a police dectective who was by this point the last defendant left in the case, settled with Rowe, and the court entered final judgment dismissing the case with prejudice. Rowe now appeals the summary judgments granted to Lazarus and Doss, and the dismissals granted to Satz, HRS, and Anderson.

B. ROWE'S THEORY

Before getting into Rowe's specific claims and theories of liability as to each remaining defendant, we think it helpful to set out his overall theory of how he came to be convicted and spend ten years in prison for a crime he insists he never committed. Once we have done that, we can turn to a more specific examination of the actual evidence and law applicable to the claims against each of the remaining defendants. We stress that what we set out here is not proven fact, and some of it is not even supported by any reasonable view of the evidence, but instead is Rowe's best case — or perhaps "worst case" would be a better term — scenario.

Rowe believes that he was the victim of a conspiracy whose goal was to wrongfully convict him of sexually abusing his daughter. His wife coaxed his daughter into fabricating tales of abuse at the hands of her father, and the conspiracy began in earnest after Doss called the Florida Department of Health and Rehabilitative Services to report the allegations. From that point, various state officials joined with Doss to see that Rowe was unlawfully convicted.

Rowe believes that Sharon Anderson, an HRS case worker, joined the conspiracy. Although Anderson did not take Doss's initial call to HRS, she was on duty the day after the call came in, and thus became the main HRS worker on the Rowe case. She would later prepare and back-date a HRS "intake report" to replace the one actually taken when Doss first called HRS. The replacement report made it look as though Anderson had taken the initial call, and more importantly omitted important information about what the girl had said over the phone-information that had been included in the initial, genuine intake report. On the day after the initial phone report, Anderson visited Doss's apartment and spoke with Rowe's daughter. She then brought the girl down to the police station where a police officer, Sandra Ledegang, took the girl's recorded statement. Anderson would later give inconsistent testimony as to whether or not she was in the room with Ledegang when the girl gave her statement.

Rowe believes that if Anderson was present, then she would have had reason to know about the next step in the conspiracy.⁵ The next step in the conspiracy, according to Rowe, is that Ledegang deliberately transcribed the audiotape of the girl's statement inaccurately in order to purge it of inconsistencies, bolster the girl's credibility, and clear away indications that Ledegang had coaxed the girl into giving the desired answers. Doss, too, was apprised of this planned fabrication because, after Ledegang had taken her daughter's statement, Ledegang confided in her that the girl's statement was inconsistent, or unpersuasive, but that Ledegang was planning to "fix" the problems when she did the transcription. Ledegang then concealed the inaccuracies in the transcription with her repeated false claim in deposition and at trial that she had, pursuant to police procedure, destroyed the original audiotapes of the girl's statement.

Rowe believes, however, that the tapes of his daughter's statement had not been destroyed, but were instead in the possession, or at least in the control of the prosecutor, Lazarus. Lazarus not only had the tapes, but he let the trial judge listen to them. Yet the tapes, which would have shown that the transcript was a forgery, and that the daughter's original answers were inconsistent, incredible, and insincere (because coaxed from her by Ledegang), were never turned over to Rowe.

Rowe believes that concealing the tapes was only part of Lazarus's role in the frame-up. Lazarus also attended the search of Rowe's apartment that immediately followed the...