              Case: 18-11831     Date Filed: 12/02/2019    Page: 1 of 23


                                                                [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 18-11831
                              Non-Argument Calendar
                            ________________________

                    D.C. Docket No. 3:16-cv-01091-BJD-MCR


EMILY HOFFMAN,
SCOTT VADEN,

                                                               Plaintiffs - Appellants,

                                        versus

OFFICE OF THE STATE ATTORNEY, FOURTH JUDICIAL CIRCUIT, et al.,

                                                                           Defendants,

STEPHEN GRISSETT,
in his official capacity Asst. State Attorney for the Fourth Judicial Circuit,
JAMES COLAW,
in his official capacity Asst. State Attorney for the Fourth Judicial Circuit,
STEVE NELSON,
in his official capacity Asst. State Attorney for the Fourth Judicial Circuit,
RACHEL DEMERS,
in her official capacity Asst. State Attorney for the Fourth Judicial Circuit,
MELISSA NELSON,
in her official capacity as State Attorney,

                                                              Defendants - Appellees.
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                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                  (December 2, 2019)

Before MARTIN, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM:

      Plaintiffs Emily Hoffman and Scott Vaden, represented by counsel on appeal,

appeal the district court’s grant of a motion to dismiss their pro se civil-rights lawsuit

filed under 42 U.S.C. § 1983 and state law against several prosecutors in the State

Attorney’s Office for the Fourth Judicial Circuit of Florida (“State Attorney’s

Office”). The plaintiffs’ claims stem from their arrest and prosecution on charges

arising out of a fraud investigation into the plaintiffs’ actions at a local company.

On appeal, Hoffman and Vaden argue that the district court erred in finding that their

claims were barred by prosecutorial immunity or were otherwise not viable. We

affirm.

                                            I.

      The relevant facts, as alleged in the operative amended complaint (the

“complaint”), are as follows. In early February 2012, the Clay County Sheriff’s

Office began investigating a report by Mike Strobel, the owner of Air Technology

Services, Inc. (“Air Tech”), that Hoffman, Air Tech’s operations manager, had been


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stealing customers and embezzling money from the company. The investigation was

transferred to the financial-crimes unit and assigned to Detective William Roberts.

      As part of the investigation, Roberts interviewed Hoffman on February 14,

2012. During the interview, Hoffman explained that she and two other Air Tech

employees, Plaintiff Vaden and non-party Sam Pollak, had been in discussion with

Strobel to purchase Air Tech. They intended to operate Air Tech along with two

related businesses they had started. But their relationship with Strobel soured,

according to Hoffman, when she raised concerns about Strobel’s accounting

practices. She ultimately reported these practices to the IRS. Hoffman denied

stealing customers and suggested that Strobel was retaliating against her for

reporting him to the IRS. At the end of the interview, the detective told her that “the

matter was civil not criminal [and] that he would speak to the state attorney’s office,

but that he was sure the case would be closed.”

      The day after Hoffman’s interview, Strobel contacted Stephen Grissett, who

was a customer of Air Tech and an Assistant State Attorney (“ASA”) at the State

Attorney’s Office. According to a letter Strobel sent Grissett, which was attached

to the complaint, Air Tech had sold a geothermal air system to Grissett, but he still

owed money on the contract. Strobel instructed Grissett not to pay Hoffman, Pollak,

or their companies because Hoffman and Pollak were defrauding his customers and

falsely representing that they had purchased Air Tech. After receiving this letter,


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Grissett contacted Roberts and stated that he may have been defrauded by Hoffman.

Grissett’s allegation “resulted in the case going from civil to criminal.”

      On February 17, 2012, Roberts contacted the plaintiffs’ bank and, without a

subpoena or other legal process, had a freeze put on their accounts and requested

their bank records. At some point thereafter, Roberts drafted a subpoena for those

same records, even though he had already received them.

      Meanwhile, Grissett continued to speak with Strobel and Roberts about the

investigation. Grissett at one point indicated to Roberts that he was “on the fence”

about participating in the case as a victim. Roberts asked Strobel to talk to Grissett

and get him back on board. Strobel then offered to forgive Grissett’s remaining debt

of more than $10,000 if Grissett agreed to testify against the plaintiffs in any civil or

criminal case against the plaintiffs. Grissett ultimately signed an affidavit against

the plaintiffs in exchange for a receipt from Strobel indicating that the balance of his

outstanding debt was paid in full.

      On May 4, 2012, Hoffman and Pollak were arrested and charged with schemes

to defraud and grand theft. ASA James Colaw was assigned to prosecute the case

for the State Attorney’s Office. At some point, ASA Rachel Demers took over the

prosecution from Colaw, who was appointed as a judge.

      After Hoffman’s and Pollak’s arrests, Colaw communicated with Pollak’s

counsel and persuaded Pollak to turn against Hoffman. Through counsel, Pollak told


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Colaw that Hoffman was threatening him and telling him what to say in the case.

Excited by the possibility of new charges, Colaw pressed Pollak’s attorney for more

information from Pollak, who then implicated Vaden as well. Colaw sought and

obtained an arrest warrant against the plaintiffs for witness tampering “without

taking sworn testimony or having a sworn affidavit from the material witness.”

      During discovery, Hoffman requested the sworn affidavit from Pollak to

support the tampering charges and, when advised that no such affidavit existed,

moved to compel the affidavit. A hearing was set on the motion to compel. Colaw

represented the state at the hearing, even though Demers had taken over the case by

that time. The court denied the motion to compel.

      Just before the scheduled jury trial, Hoffman “entered a no contest best

interest plea to a misdemeanor petit theft,” and the original charges were dropped.

She received a “withhold of adjudication.” Vaden’s charge of witness tampering

was reduced to the misdemeanor offense of harassing a witness without entry of any

plea. He was sent to pretrial intervention and the charge was dismissed. As a result

of the prosecution against them, the plaintiffs “lost their two businesses, their

business reputation, their personal reputation, friends, their home, personal property,

their jobs and health insurance, which in turn led to Hoffman being without

insurance when she was later diagnosed with breast cancer.”

                                          II.


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       The plaintiffs’ pro se amended complaint raised a variety of federal and state

claims against State Attorney Angela Corey and ASAs Colaw, Demers, Grissett, and

Steve Nelson in their individual and official capacities. Under 42 U.S.C. § 1983, the

plaintiffs alleged claims of malicious prosecution and seizure and concealment of

evidence, unlawful search of bank records, municipal liability, and conspiracy to

violate constitutional rights.1 Under state law, they alleged claims of malicious

prosecution, conspiracy, and intentional and negligent infliction of emotional

distress. While the case was pending, Melissa Nelson replaced Corey as State

Attorney and was substituted as defendant for the official-capacity claims against

Corey, though Corey continued as a defendant in her individual capacity.

       The plaintiffs complained of myriad and pervasive deficiencies in the

prosecutions against them. According to the plaintiffs, (a) Colaw initiated the

prosecutions against them without probable cause; (b) Corey and Colaw failed to

recuse the State Attorney’s Office from the prosecution despite knowledge of

Grissett’s role as a witness in the case; (c) the State Attorney’s Office failed to list

Grissett as a “category A” witness during discovery and concealed his role in the

case; (d) Colaw and Demers continued the prosecution despite evidence showing




       1
          The plaintiffs also brought a cause of action under 18 U.S.C. §§ 241 and 242, but these
statutes “are criminal in nature and provide no civil remedies.” Hanna v. Home Ins. Co., 281 F.2d
298, 303 (5th Cir. 1960); see Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc) (adopting as binding precedent all Fifth Circuit decisions prior to October 1, 1981).
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that the plaintiffs were innocent; (e) Colaw and Demers withheld exculpatory

evidence during discovery; (f) Grissett corruptly influenced the prosecution against

them; (g) Colaw provided discovery from the criminal case to a former colleague

who was representing Hoffman’s former husband in a custody case; (h) the State

Attorney’s Office prepared a subpoena for the plaintiffs’ bank records to cover up

the fact that those records had already been obtained without legal process; and

(i) Corey and Steve Nelson “sanctioned and approved” all of this conduct.

       The defendants filed a motion to dismiss, which the district court granted in

full. The plaintiffs now appeal, arguing that the court erred in reaching the following

conclusions: (1) that Colaw was entitled to absolute prosecutorial immunity under

§ 1983; (2) that Grissett was not acting “under color of law,” and thus not subject to

suit under § 1983; (3) that the plaintiffs failed to show a causal connection between

supervisors Corey and Steve Nelson and the alleged constitutional injuries under

§ 1983; and (4) that the state-law claims of malicious prosecution and intentional

infliction of emotional distress failed on the merits.2

                                              III.

       “Claims of absolute immunity present questions of law that we review de

novo.” Mikko v. City of Atlanta, Ga., 857 F.3d 1136, 1142 (11th Cir. 2017).


       2
         We deem abandoned any other matters that were raised before the district court but not
raised on appeal, and we do not discuss them further. See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680 (11th Cir. 2014) (issues not raised on appeal are abandoned).
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Likewise, we review de novo the grant of a motion to dismiss for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6). Rivera v. Leal, 359 F.3d 1350,

1353 (11th Cir. 2004). When conducting this review, we accept the allegations in

the complaint as true and construe them in the light most favorable to the plaintiff.

Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291, 1296–97 (11th Cir. 2015). To

survive a motion to dismiss under Rule 12(b)(6), the “complaint must state a claim

to relief that is plausible on its face, meaning it must contain factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (quotation marks omitted).

                                         IV.

      We first consider whether Colaw is entitled to prosecutorial immunity. We

apply a “functional approach” when evaluating claims of prosecutorial immunity,

“look[ing] to the nature of the function performed,” not the identity of the actor.

Rivera, 359 F.3d at 1353 (quotation marks omitted). The defendant prosecutor bears

the burden of showing that prosecutorial immunity is “justified for the function in

question.” Mikko, 857 F.3d at 1142 (quotation marks omitted).

      “A prosecutor is entitled to absolute immunity for all actions he takes while

performing his functions as an advocate for the government” in the judicial phase of

the criminal process. Rivera, 359 F.3d at 1353. The prosecutorial function includes

the initiation and pursuit of a criminal prosecution, the presentation of the state’s


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case, and other actions that are “intimately associated with the judicial phase of the

criminal process,” such as court appearances. Mikko, 857 F.3d at 1142; see Hart v.

Hodges, 587 F.3d 1288, 1295 (11th Cir. 2009) (“Prosecutors are immune for

appearances before a court and conduct in the courtroom . . . .”). Prosecutorial

immunity extends to “filing an information without investigation, filing charges

without jurisdiction, filing a baseless detainer, offering perjured testimony,

suppressing exculpatory evidence, . . . [and] threatening . . . further criminal

prosecutions.” Hart, 587 F.3d at 1295 (quotation marks omitted). In short, “[a]

prosecutor is immune for malicious prosecution.” Id.

      Prosecutorial immunity, however, does not apply “when a prosecutor is not

acting as an officer of the court but is instead engaged in certain investigative or

administrative tasks.” Id. at 1296. Prosecutors are not absolutely immune for

“conducting investigative work before an arrest, making statements to the press, and

providing legal advice to police regarding pre-indictment investigation techniques.”

Id. (citations omitted); see Rivera, 359 F.3d at 1353 (a prosecutor functions as an

investigator when she “search[es] for the clues and corroboration that might give

h[er] probable cause to recommend that a suspect be arrested”). Also, absolute

immunity does not apply if the prosecutor is “a complaining witness.” Rivera, 359

F.3d at 1353. A prosecutor functions as a complaining witness when she “personally

swears to the truth of information [s]he shares with the court.” Id. at 1354.


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      The plaintiffs argue that Colaw is not entitled to prosecutorial immunity

because he functioned in an investigative or administrative capacity or as a

complaining witness. We disagree.

      Here, Colaw is entitled to absolute prosecutorial immunity. To begin with,

under our binding caselaw, Colaw 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

information. See Hart, 587 F.3d at 1295. Our caselaw also requires us to conclude

Colaw is likewise immune from liability for withholding exculpatory information

during discovery, as well as for appearing before the court at a hearing on Hoffman’s

motion to compel. See id. While the plaintiffs assert that Colaw appeared for the

hearing after his appointment as a judge, there is no indication that, despite the

appointment, Colaw was not authorized to appear on behalf of the state at that time.

As to Colaw’s alleged failure to recuse due to Grissett’s involvement, the decision

whether to recuse from a prosecution is an action intimately associated with the

judicial phase of the criminal process, little different conceptually than a decision to

initiate or pursue a prosecution. See id.

      Nor can we conclude that the complaint’s allegations support the plaintiffs’

contention that Colaw acted as an investigator or a complaining witness. The fact

that Colaw relied on information obtained during the investigation, such as the


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plaintiffs’ bank records, or even that he was aware of others’ investigatory conduct,

is not the same thing as if Colaw personally engaged in investigatory conduct. 3 Nor

did Colaw act as an investigator when he solicited information from Hoffman’s

codefendant, Pollak, and then used that information to bring charges against the

plaintiffs. Prosecutorial immunity extends to “actions preliminary to the initiation

of a prosecution and actions apart from the courtroom.” Buckley v. Fitzsimmons,

509 U.S. 259, 272 (1993) (quotation marks omitted).                     And negotiating with

cooperating codefendants, and then bringing additional charges in light of new

information, is conduct “fairly within [the prosecutor’s] functions as an advocate.”

Id. at 273 (quotation marks omitted); see Mullinax v. McElhenney, 817 F.2d 711,

715 (11th Cir. 1987) (holding that the prosecutorial function includes “[o]ffering a

witness immunity in exchange for his testimony”).

       Finally, while the plaintiffs’ brief states that Colaw “signed under oath” the

informations charging the plaintiffs, no such allegations appeared in their complaint.

Specifically, there are no allegations that Colaw personally swore to the truth of

matters in the informations. Accordingly, the allegations in the complaint fail to




       3
         In their brief on appeal, the plaintiffs suggest that Colaw was personally involved in
conducting an “illegal clandestine recording of a phone call” between Grissett and Pollak, but it
appears from their allegations that this phone call occurred before Hoffman’s arrest and, therefore,
before Colaw was involved in the case. No specific factual allegations in the complaint identify
Colaw as involved in whatever recording may have been produced.
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show that Colaw acted as a complaining witness by “personally swear[ing] to the

truth of information he share[d] with the court.” Rivera, 359 F.3d at 1354.

       For all of these reasons, we agree with the district court that our prior

precedent requires the conclusion that Colaw is entitled to absolute prosecutorial

immunity against the plaintiffs’ § 1983 claims. 4

                                              V.

       The plaintiffs next dispute the district court’s conclusion that Grissett was not

subject to suit under § 1983 because he was not acting under color of state law in the

circumstances of this case.

       Not all torts or other deprivations of rights committed by a person who is a

government agent are cognizable under § 1983. Myers v. Bowman, 713 F.3d 1319,

1329 (11th Cir. 2013). “Section 1983 instead punishes only actions committed

‘under color of any statute, ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia.’” Id. (quoting 42 U.S.C. § 1983). A plaintiff

asserting a claim under § 1983 must show (1) that she was deprived of a federal right

(2) by a person acting under color of law. Id.

       The mere fact that Grissett was a state employee does not mean that he acted

under color of state law. “The traditional definition of acting under color of state


       4
        The plaintiffs’ allegations regarding Colaw’s interactions with a former colleague, who
was representing Hoffman’s ex-husband in a custody case, are conclusory in nature and fail to
show that any information obtained affected the prosecution against Hoffman.
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law requires that the defendant in a [section] 1983 action have exercised power

possessed by virtue of state law and made possible only because the wrongdoer is

clothed with the authority of state law.” Id. (quotation marks omitted). Actions

taken in the defendant’s role as a private person are not under color of law. Id. So

“[t]he dispositive issue is whether the official was acting pursuant to the power

he/she possessed by state authority or acting only as a private individual,” because a

government agent “cannot be held liable [under § 1983] for a constitutional tort

when he acts in a private capacity.” Id. at 1330.

      In Myers, we held that a judge did not act under color of state law when he

reported to the police that someone had stolen his dog. Id. We noted that the “theft

occurred in connection with a private dispute and not a matter that was before [the

judge] in his official capacity as a magistrate judge, and [the judge] alleged a theft

of private property, not any property that belonged to the government.”            Id.

Although the judge reported the theft using his government-issued communications

system, that fact did not mean that the judge acted under color of law because “there

[was] no reason to believe that [the judge] would not have done, or been able to do,

what [he] did” without the government system. Id. at 1330–31 (quotation marks

omitted). Moreover, we explained that the fact that the judge’s position influenced

others was not enough to show that the judge acted under state law. Id. at 1331. In

evaluating these kinds of issues, we explained, our focus is on the conduct of the


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defendant, not the victim or a third-party. Id. And the record in Myers did not show

that the judge acted pursuant to the power he possessed by state authority, “[n]or

was the arrest made possible only because [the judge] [wa]s clothed with the

authority of state law.” Id. (quotation marks omitted).

      Here, the allegations of the complaint, even accepted as true, show that

Grissett acted as a private citizen, and “not in his official capacity or while exercising

his responsibilities pursuant to state law.” Id. (quotation marks omitted). Grissett

reported to Detective Roberts that he may have been defrauded in relation to a

private purchase he had made from Hoffman’s former employer, Air Tech, and he

then signed an affidavit against Hoffman and cooperated with the investigation. He

did not take any official action with respect to the prosecution against Hoffman.

Because Grissett’s involvement stemmed from a private dispute and any other

private person could have done what he did, he did not act under color of law. See

Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261, 1268 (11th Cir. 2012) (“[A]ny

private citizen can submit a report to law enforcement and seek criminal charges

against another person.”).

      The plaintiffs argue that Grissett acted under color of law because he used his

official email and computer to view case-related documents, email Pollak and

Roberts, and prepare the affidavit, and he had a state employee notarize the affidavit.

Like the judge’s use of the government-issued communications system to report his


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dog stolen in Myers, however, Grissett’s specific uses of government resources here

does not render his conduct to be under color of law. Grissett could easily have used

a personal email or computer to report the crime, email others, and prepare the

affidavit, and he could have had the affidavit notarized by any other notary. There

is no reason to believe that Grissett would not have done, or been able to do, what

he did here without his access to and use of these government resources. See Myers,

713 F.3d at 1330–31; see also Butler, 685 F.3d at 1267–68 (corrections officer did

not act under color of law, even though she used the gun and handcuffs she carried

while on duty to detain and assault a young man at her home).

      The plaintiffs also contend that Grissett’s position as an ASA influenced

others in the investigation and prosecution and that his “credibility” resulted in the

case’s progression from a civil one to a criminal one. But as we have previously

explained, “the primary focus of the color of law analysis must be on the conduct of

the [defendant], not the victim or a third-party.” Myers, 713 F.3d at 1331. And the

allegations of the complaint do not support a plausible inference that Grissett acted

pursuant to the power he possessed by authority. See id. Nor was the plaintiffs’

“arrest made possible only because [Grissett] [wa]s clothed with the authority of

state law.” Id. (quotation marks omitted). Although Grissett’s allegation of being

defrauded by Hoffman resulted in Roberts’s decision to pursue the case as a criminal




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rather than civil matter, there is little to show that Roberts would have acted

differently if Grissett was not an ASA.

      Reviewing the allegations as a whole, we cannot conclude that they give rise

to a plausible claim that Grissett acted under color of law. And because Grissett did

not act under color of state law, he is not liable under § 1983.

                                          VI.

      Next, we address whether the plaintiffs stated a claim of supervisory liability

under § 1983 against Corey and Steve Nelson in their individual capacities.

      A supervisor is not liable under § 1983 for the unconstitutional acts of her

subordinates unless she either “directly participated in the unconstitutional conduct”

or “a casual connection exists between the supervisor’s actions and the alleged

constitutional violation.” Keith v. DeKalb Cty., Ga., 749 F.3d 1034, 1047–48 (11th

Cir. 2014). A causal connection can be shown where a supervisor’s policy or custom

results in deliberate indifference to constitutional rights or “when facts support an

inference that the supervisor directed the subordinates to act unlawfully or knew that

the subordinates would act unlawfully and failed to stop them from doing so.”

Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (quotation marks omitted).

      Here, the district court did not err in concluding that the plaintiffs failed to

state a claim for § 1983 supervisory liability against Corey and Nelson. The

plaintiffs argue that they established a causal connection by showing that the State


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Attorney’s Office had policies or customs of violating defendants’ constitutional

rights in various ways.     But these policies or customs are little more than a

restatement of the alleged wrongful acts committed against the plaintiffs in this case.

      “In order for a plaintiff to demonstrate a policy or custom, it is generally

necessary to show a persistent and wide-spread practice.” McDowell v. Brown, 392

F.3d 1283, 1290 (11th Cir. 2004) (quotation marks omitted); see Goebert v. Lee Cty.,

510 F.3d 1312, 1332 (11th Cir. 2007) (“A custom is an unwritten practice that is

applied consistently enough to have the same effect as a policy with the force of

law.”). Nothing of the sort has been alleged here. The incidents identified by the

plaintiffs, though numerous, are isolated from each other and based solely on the

facts of this case. They do not demonstrate persistent and widespread practices.

Simply calling something a “custom” does not make it so. Accordingly, the

plaintiffs have “failed to meet the extremely rigorous standard for supervisory

liability.” West v. Tillman, 496 F.3d 1321, 1329 (11th Cir. 2007).

      The plaintiffs also contend that they established a causal connection by

showing that Corey and Nelson were aware of the alleged wrongful conduct and

failed to stop it. See Cottone, 326 F.3d at 1360. The complaint’s allegations fail to

support this argument, though. In the main, the plaintiffs alleged without any

supporting factual allegations that Corey and Nelson were aware of what Colaw was

doing “through the chain of command.” They also alleged, again without supporting


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factual allegations, that Corey and Nelson “acquiesce[d],” “approved,” or

“sanctioned” Colaw’s conduct.       Because the plaintiffs’ claims of supervisory

liability are supported by conclusory allegations, the complaint does not contain

sufficient “factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” See Miljkovic, 791 F.3d at 1296–

97.

      In any event, it would be exceedingly odd if Colaw was entitled to absolute

prosecutorial immunity for his conduct in relation to the plaintiffs’ prosecution, as

we have concluded above, but Colaw’s supervisors were not entitled to the same

immunity for approving or failing to prevent that same conduct. The Supreme Court

agrees. In Van de Kamp v. Goldstein, the Court explained 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. See 555 U.S. 335, 345–46 (2009). Were the rule otherwise, prosecutors’

offices would be subject to suit “in virtually every case in which a line prosecutor

makes a mistake for which he is personally immune.” Schneyder v. Smith, 653 F.3d

313, 333–34 (3d Cir. 2011). And that, in turn, would undermine the primary purpose

of prosecutorial immunity, which is to “protect[] the proper functioning of the

office,” rather than the individual prosecutor. Van de Kamp, 555 U.S. at 345–47

(quotation marks omitted).


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      Here, the plaintiffs’ claims against Corey and Nelson in their capacity as

supervisors are all directly connected to Colaw’s conduct in the individual

prosecutions against the plaintiffs. In other words, the claims “rest[] in necessary

part upon a consequent error by an individual prosecutor” in those prosecutions. Id.

at 346. In a case like this, the same concerns that underlie prosecutorial immunity

for the frontline prosecutor also apply to supervisory prosecutors. Id. at 346–47. In

sum, because Colaw is entitled to prosecutorial immunity for his conduct, so too are

Corey and Nelson for supervising that conduct. See id. at 345–48.

                                        VII.

      Finally, we consider whether the plaintiffs stated claims under state law for

malicious prosecution and intentional infliction of emotional distress.

                                         A.

      Under Florida law, a plaintiff bringing a claim for malicious prosecution must

prove, among other elements, that there was a “bona fide termination” of the

proceeding in her favor and “an absence of probable cause” for the proceeding.

Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994).

      The phrase “bona fide termination” means that the proceeding “ended in a

manner indicating the original defendant’s (and current plaintiff’s) innocence of the

charges or allegations.” Doss v. Bank of Am., N.A., 857 So. 2d 991, 994 (Fla. Dist.

Ct. App. 2003). A proceeding that ends due to “bargaining or negotiat[ion]” is


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usually, though not always, insufficient to constitute a “bona fide termination” of the

proceeding. Id. at 995; see Alamo Rent-A-Car, 632 So. 2d at 1356 (“[I]f the

bargaining constitutes nothing more than a promise to pay what was offered before

the charges were brought, and the negotiations reflect the accused’s innocence, then

the termination would still be bona fide.”); Union Oil of Cal. Amsco Div. v. Watson,

468 So. 2d 349, 353 n.3 (Fla. Dist. Ct. App. 1985) (“‘Bona fide’ . . . means that the

termination was not bargained for or obtained by the accused upon a promise of

payment or restitution.”). The critical question is whether the termination of the

proceeding indicates the proceeding’s “lack of merit,” which depends on the totality

of the circumstances. Doss, 632 So. 2d at 995; see Cohen v. Corwin, 980 So. 2d

1153, 1155–56 (Fla. Dist. Ct. App. 2008).

      Here, the district court did not err in concluding that the plaintiffs failed to

establish the element of a “bona fide termination.” As to Hoffman, the plaintiffs

contend that the court failed to recognize that two of her charges were dismissed.

But these charges were dismissed as part of a plea agreement with the state

prosecutors, under which she agreed to plead guilty to misdemeanor petit theft.

Because the proceeding against Hoffman ended due to bargaining that resulted in a

guilty plea to a lesser-included offense, she cannot establish the element of “bona

fide termination” in her favor. See Alamo Rent-A-Car, 632 So. 2d at 1356; Doss,

857 So. 2d at 994.


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      As to Vaden, we agree with the district court that the resolution of the witness-

tampering charge against him does not reflect a “bona fide termination” in his favor.

Vaden’s charge was dismissed after he agreed to participate in the pretrial

intervention program, which permits “first offender[s]” the opportunity to have

criminal charges dismissed without prejudice. Fla. Stat. § 948.08(2). The nature of

the program itself indicates that dismissal does not relate to “innocence of the

charges or allegations.” Doss, 857 So. 2d at 994; Swartsel v. Publix Super Markets,

Inc., 882 So. 2d 449, 452 (Fla. Dist. Ct. App. 2004) (explaining that the program’s

“primary purpose is to allow first offenders who, by definition, are subject to being

found guilty of the crime charged, to avoid a conviction on their record by

successfully completing the program and having a nol pros entered”), abrogated on

other grounds by State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067 (Fla.

2009).

      Although Vaden may not have been required to complete the terms of pretrial

intervention before the charge was dismissed, that fact alone does not indicate that

the dismissal was based on his innocence. The dismissal was still contingent on a

negotiated agreement to participate in the pretrial intervention program, and the

plaintiffs identify no other circumstances tending to show that the prosecutor

concluded that the “evidence is lacking and that the charges are not provable.” See




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Swartsel, 882 So. 2d at 451 (holding that a dismissal of charges after participation

in the pretrial intervention program did not constitute a “bona fide termination”).

      Because the plaintiffs have not plausibly alleged a “bone fide termination” of

the proceedings in their favor, we need not and do not address whether probable

cause supported the proceedings against them. We affirm the dismissal of their state-

law malicious-prosecution claims.

                                         B.

      To state a claim of intentional infliction of emotional distress, the plaintiff

must allege that “1) the defendant acted recklessly or intentionally; 2) the

defendant’s conduct was extreme and outrageous; 3) the defendant’s conduct caused

the plaintiff’s emotional distress; and 4) plaintiff’s emotional distress was severe.”

Johnson v. Thigpen, 788 So. 2d 410, 412 (Fla. Dist. Ct. App. 2001). Liability will

be found “only where the conduct has been so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious and utterly intolerable in a civilized community.” Id. (quoting

Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277, 278–79 (Fla. 1985)).

      Here, we agree with the district court that the plaintiffs’ claim for intentional

infliction of emotional distress is due to be dismissed. The plaintiffs allege various

wrongdoings and unconstitutional practices in the prosecution against them, and if

these allegations are true, the plaintiffs should certainly consider reporting the


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defendants to the Florida Bar. But that is not the standard for sustaining a claim of

intentional infliction of emotional distress. And as regrettable as some of the

conduct the plaintiffs allege is, we cannot say the plaintiffs’ allegations reflect

conduct that satisfies the standard of being so “extreme and outrageous” as to “go

beyond all possible bounds of decency,” particularly where, as we have noted, the

plaintiffs’ agreement to less than an outright dismissal or acquittal of the charges

brought against them could be viewed as a concession of at least some validity of

the underlying charges. We therefore affirm the dismissal of this claim.

                                       VIII.

      For the reasons stated, we affirm the dismissal with prejudice of this action.

      AFFIRMED.




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