Spence-Jones v. Rundle (991 F. Supp. 2d 1221, 2013)

ORDER DISMISSING AMENDED COMPLAINT

DONALD M. MIDDLEBROOKS, District Judge.

THIS CAUSE comes before the Court upon the following:

1. Motion to Dismiss by Katherine Fernandez Rundle (DE 60);

2. Motion to Dismiss by Tomás Regalado (DE 61);

3. Motion to Dismiss by Robert Fielder (DE 62);

4. Motion to Dismiss by William Richard Scruggs (DE 73); and

5. Motion to Strike Amended Complaint by William Richard Scruggs (DE 74).

I have had the benefit of memoranda filed by the Parties as well as oral argument.

I. Introduction

The Plaintiff, Michelle Spence-Jones (“Spence-Jones”), a former Miami City Commissioner has sued Dade County State Attorney Katherine Fernandez Rundle (“Rundle”), Assistant State Attorney Richard Scruggs (“Scruggs”), an investigator in the State Attorney’s office, Robert Fielder (“Fielder”), and the Mayor of Miami, Tomás Regalado (“Regalado”). Essentially the Complaint alleges that the Defendants conspired to remove Ms. Spence-Jones from office by manufacturing false evidence, hiding exculpatory evidence, and manipulating the criminal process by charging her in two criminal cases. One of the cases was dismissed. In the other she was acquitted by a jury of her peers.

The Complaint reads more like a political manifesto than the short, plain statement of jurisdiction and the claims contemplated by Rule 8 of the Federal Rules of Civil Procedure. Nineteen claims are asserted: ten claims pursuant to 42 U.S.C. § 1983 alleging fabrication and concealment of evidence, false arrest, malicious prosecution, First Amendment retaliation, civil rights conspiracy, supervisory liability, retaliatory inducement to prosecute, and Due Process Stigma-Plus; Civil RICO; common law false arrest; malicious prosecution; intentional infliction of emotional distress; and negligent hiring, discipline, training, retention and supervision. Mindful of the damage that could be inflicted on the functioning of the government and law enforcement officials of Miami Dade County, I stayed discovery pending resolution of the instant motions to dismiss. See Chudasama v. Mazda Motor Corp., 123 F.3d 1353 (11th Cir.1997).

II. Amended Complaint

The Complaint is 114 pages long and has 757 numbered allegations. It is full of self-serving hyperbole, personal attacks, and formulaic, implausible conclusions. For example, Spence-Jones describes herself as “a powerful voice for the community ... [who] quickly developed a reputation for independence and loyalty to her constituents, often fighting powerful, moneyed, and entrenched interests for the sake of what she believed to be the good of her District and the City.” (Compl. ¶ 30). Her opposition, however, “came from a somewhat different school of politics than Spence-Jones, a school based on friendship, patronage, and political favors.” (Id. ¶ 35).

Full of political intrigue, the Complaint moves from an attempted extradition or kidnapping in Costa Rica (id. ¶¶ 83-88), the 1993 confrontation between the FBI and Branch Davidians at Waco, Texas (id. ¶¶ 89-93), a plan to fire the Miami Police Commissioner because he had ordered raids on illegal gambling (id. ¶¶ 535-540), the Mayor’s alleged misuse of a city-issued gas credit card (id. ¶¶ 51-55), and the failure to arrest and prosecute the Mayor (at the time, a city commissioner) over an incident during street protests over Elian Gonzalez which occurred over a decade ago. (Id. ¶ 56).

For purposes of this Order, however, the pertinent allegations are relatively discreet, involving two criminal prosecutions.

A. Karym Ventures*Café Soul Prosecution

Allegations of the Complaint pertaining to the prosecution of Ms. Spence-Jones arising out of the Karym Ventures*Café Soul matter may be found in paragraphs 238-325 and 543-592. I have construed the Complaint in the light most favorable to the Plaintiff, accepting as true all facts that she alleges. See Hishon v. King of Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); see also Wright v. Newsome, 795 F.2d 964, 967 (11th Cir.1986).

I have also reviewed a document entitled “Close-Out Memo, Michelle Spence-Jones Case No. F09-37102,” attached as Exhibit B to the Defendant Scruggs’ Motion to Dismiss (the “Closeout Memo”). References to the Closeout Memo are contained in paragraphs 8, 553-577, 584-585, and 589-592 of the Complaint. The Eleventh Circuit has held that a court may consider a document attached to a motion to dismiss without converting the motion into one for summary judgment if the attached document is: (1) central to the plaintiffs claim, and (2) undisputed. In this context “undisputed” means that the authenticity of the document is not challenged. A document need not be physically attached to a pleading to be incorporated by reference into it; if the document’s contents are alleged in a complaint and no party questions those contents, such a document can be considered, provided it meets the centrality requirement. Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir.2005). See also Horsley v. Feldt, 304 F.3d 1125 (11th Cir.2002). Unlike the factual allegations of the Complaint, I have not presumed the truth of the statements contained in the Closeout Memo. But it is helpful in understanding the nature of the dispute and the chronology of events during the criminal prosecutions.

Karym Ventures, Inc. (“Karym”) was a private corporation founded by Ms. Spence-Jones and several of her family members while Ms. Spence-Jones was a city employee, but before she was elected to the City Commission. (Compl. ¶¶ 31, 239; Closeout Memo, p. 2). According to the Complaint, Dr. Barbara Carey-Shuler, Chairperson of the Dade County Commission, authorized $50,000 in public funds to Karym for a neighborhood revitalization project called Café Soul that involved redevelopment of a crack house. The project had several components: a restaurant focusing on southern cuisine, an art gallery, a hair salon, and an entertainment space. (Id. II239). On September 23, 2004, Dr. Carey-Shuler recommended that the Metro-Miami Action Plan Trust (“MMAP”) provide funding for Café Soul, but “the Commission, at least according to some MMAP staff, apparently recommended mistakenly” that the funds be directed to two other entities: Timbuktu Marketplace and Osun Village. (Id. ¶ 241).

The Closeout Memo describes the “mistake” as follows:

The facts relevant to the criminal case against Ms. Spence-Jones began on September 23, 2004. On that date the Miami-Dade County Commission held a budget meeting to determine how county funds should be allocated in fiscal year 2005. Shortly before the public meeting, Chairperson Dr. Barbara Carey-Shuler had a meeting in her county office with MMAP officials and told them she was going to recommend that MMAP award grants to three separate entities: (1) Friends of MLK, Inc. (“FMLK”); Timbuktu Marketplace (“Timbuktu”), and Osun Village (“Osun”). Commissioner Dr. CareyShuler’s “recommendation” became part of the county’s budget at that nights’ Commission meeting; however, no dollar amounts were included in the line item. According to MMAP officials, nothing like this had ever happened before. Under normal circumstances individuals submit grant applications on their own behalf or on behalf of their organization to MMAP, the applications are reviewed by members of MMAP’s staff and the proposed grantees to the MMAP Board, and finally the MMAP Board votes on whether to fund the grant. Commissioner Dr. Carey-Shuler’s “recommendation” voided this entire process. Furthermore, MMAP officials have stated that the recommendation from the Chairperson of the Miami Dade County Commission was considered to be a directive and that neither the staff nor the Board ever believed that they had any choice about the three grants. ■

(Closeout Memo, pp. 2-3).

According to the Complaint, after Ms. Spence-Jones informed Dr. Carey-Shuler of the “mistake,” she took steps to direct the $50,000 to Karym. However, the Closeout Memo states as follows:

Processing of the three grants was assigned to William Simmons, MMAP’s senior manager. Since the three grants as voted on by the County Commission had no dollar amount, Mr. Simmons called Commissioner Dr. Carey-Shuler’s office to determine the amount for each grant. He was told by a senior staff person in the Chairperson’s office that each of these grants should be for $25,000. The MMAP Board affirmed the three grants on November 8, 2008 without even knowing which individuals would actually receive the funds. After the Board’s vote, Mr. Simmons tried to determine who would sign the grant documents for each of the three entities since he had never heard of them and no application had been submitted to MMAP. During November and December, 2004 Mr. Simmons was unable to ascertain any of the individuals associated with FMLK, Timbuktu, or Osun. Meanwhile, on December 15, 2004 (after MMAP had affirmed the three grants) Karym Ventures, Inc. was incorporated by attorney Marlon Hill. Mr. Hill has testified in a sworn statement that he was called to the home of Michelle Spence-Jones and requested to file the incorporation papers for Karym since, according to Ms. Spence-Jones, Karym was about to receive a county grant from MMAP.

Around January 3, 2005, Ms. Spence-Jones called William Simmons. His notes of the conversation are included in the Closeout Memo. She told him that the Café Soul project was to be completed with Karym, that the overall project name was Osun, and that Café Soul would include the Timbuktu Market Place. She also told Mr. Simmons that she would put him in touch with the Friends of MLK (“FMLK”), most likely through Pastor Gaston Smith.

The Complaint alleges that “Carey-Shuler knew Spence-Jones personally and had confidence that Spence-Jones would make Café Soul a success.” The Closeout Memo puts it a little differently. According to Mr. Simmons’ sworn statement, he was well aware of the close relationship between Commission Chairperson CareyShuler and Ms. Spence-Jones and believed that it was in the best interest of his continued employment to “make this happen.” (Closeout Memo, p. 4). Simmons requested letters from the principals of Timbuktu and Osun authorizing receipt by Karym of the two $25,000 grants and also drafted a proposed letter to be signed by Dr. Carey-Shuler approving the redirecting of funds and sent the draft to Ms. Spence-Jones. (Id. at 4).

These three letters and the circumstances surrounding them constitute the heart of the Karym-related prosecution of Ms. Spence-Jones. (Compl. ¶ 4). One of them, the Carey-Shuler letter, is at the crux of her case against the State Attorney’s Office (“SAO”) defendants. (Id. ¶¶ 247-58, 269-70, 279-83, 292, 314, 318, 480-84).

Marvin Weeks, who originated the idea of Timbuktu Marketplace, had discussions with Ms. Spence-Jones about joining with her in Café Soul, but was unaware that on September 23, 2004, Dr. Carey-Shuler directed MMAP to award a grant to Timbuktu or that the MMAP Board had approved a $25,000 grant. (Id. ¶ 4). On January 3, 2005, Ms. Spence-Jones offered her “public relations and marketing services” to Mr. Weeks for $3,000; two 'days later she requested a letter from Mr. Weeks supporting the Café Soul project. According to the Closeout Memo, Mr. Weeks provided the letter without knowing it would be used to obtain Timbuktu’s $25,000 grant from MMAP. Months later, Mr. Weeks learned that Karym had received the $25,000 and confronted Ms. Spence-Jones. He provided sworn testimony that she replied: “Marvin, that is not your money. This is my money, the Commissioner intended me to have that money.” (Closeout Memo, p. 5).

The second $25,000 grant was directed by Commissioner Carey-Shuler to Osun Village, a redevelopment project of the N.W. 7th Avenue corridor between 54th and 58th Streets in Miami that did not include Café Soul. According to the Closeout Memo, the originators of the Osun Village, architects Harland Woodward and Nathaniel Styles, were likewise unaware that they had been awarded a $25,000 grant by MMAP. The second letter, a letter with the letterhead of their corporation, Community Builders Holistic Development Corporation, was submitted to MMAP by Ms. Spence-Jones supporting the redirection of the $25,000 Osun grant to Karym. According to Stiles’ and Woodward’s sworn statements, they were unaware of the letter until it was shown to them by prosecutors and investigators and they did not prepare or authorize the unsigned letter on their corporate stationary. (Id. at 6).

The third letter forms much of the basis of Ms. Spence-Jones’ lawsuit. (See Compl. ¶¶ 247-58, 269-71, 279-85, 292, 303-05, 313-14, 318, 480, 482-84, 565, 570-76, 589, 602-04, 648). The Complaint alleges that the Karym’s prosecution was based upon “fabricated” evidence. Surprisingly however, the so-called “fabricated evidence” is not physical evidence, but, instead, a sworn statement by Commission Chairperson Dr. Barbara Carey-Shuler.

The key allegation underlying all of the exaggerated and conclusory rhetoric is that the SAO Defendants “fabricated evidence in an attempt to manufacture probable cause, by lying to, threatening, and manipulating Carey-Shuler to induce her to give an apparently unknown false statement that became the basis for Spence-Jones’ arrest.” (Id. ¶ 235(H)). The Complaint alleges that Dr. Carey-Shuler had “forgotten about her decisions about Café Soul funding including her decision to request a $50,000 grant for Karym ..., that her ‘forgetfulness was understandable,’ and the SAO Defendants ‘deliberately misled’ her into believing she had never authorized the Karym funding.” (Id. ¶¶ 278, 281). By threatening, lying to, and misleading the chief prosecution witness, and withholding the key pieces of exculpatory evidence, “the SAO Defendants induced Carey-Shuler to make a sworn statement on September 18, 2009, falsely implicating Spence-Jones in a scheme to take County money improperly without her authorization.” Id. ¶¶ 285, 602.

And how did the SAO Defendants trick the County Commission Chairperson into providing “fabricated and false testimony”? (Id. ¶ 602). By allegedly concealing from her drafts of her own February 15, 2005 letter. While it might seem implausible that an educated, experienced, elected public official, described by Ms. Spence-Jones as a “hometown hero” would be so easily misled, the Complaint alleges that the prosecutors acted with “a knowing, willful, wanton, grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of Plaintiffs rights, privileges, welfare, and well-being and are guilty of egregious and gross misconduct towards Plaintiff.” (Id. ¶ 605).

The Closeout Memo describes the interaction with Dr. Carey-Shuler from the perspective of the prosecutors. On September 10, 2009, pursuant to subpoena and accompanied by counsel, Dr. Carey-Shuler reviewed the MMAP file including her February 15, 2005 letter which had been faxed to Mr. Simmons and directed MMAP to “release the $50,000 to Karym Ventures, Inc.” The letter was stamped, but not personally signed.

Dr. Carey-Shuler allegedly told the prosecutors that she: had intended the two grants to go to Timbuktu and Osun Village; that she had not signed or authorized the stamped signature on the February 15, 2005 letter; and had never intended Spence-Jones or Karym to receive the $50,000. (Closeout Memo., p. 7). No sworn statement was taken that day, but she was requested to return a week later.

On September 18, 2009, again accompanied by counsel, she returned to the State Attorney’s office and provided a sworn statement. The Closeout Memo summarizes her sworn testimony as follows:

• She intended for Timbuktu Marketplace and Osun Village to get the MMAP grants;

• She was not aware that Michelle Spence-Jones had contacted the MMAP in order to redirect these two grants to Karym Ventures;

• She not only denied writing the February 15th letter to MMAP, but also stated that it was not her recognized style of writing;

• It was never her intent for Karym Ventures to obtain the grant funds; and

• She could not redirect the programming of funds on her own. They would have to be reprogrammed by the full county commission.

(Id.).

On November 13, 2009, “largely upon reliance on Dr. Carey-Shuler’s sworn statement, Michelle Spence-Jones was criminally charged and arrested for the theft of $50,000 in MMAP and Miami Dade County funds.” (Id. at 8). What happened next is a matter of bitter dispute.

According to the prosecutors, after receiving Dr. Carey-Shuler’s sworn statement, but before the criminal charges were filed, investigators reviewed approximately sixty (60) boxes of commission documents. A county employee remained in the room with them during their review of the files. Investigators located Dr. Carey-Shuler’s February 15, 2005 letter with her stamped signature. They also claim to have discovered an empty file marked “Café Soul.” According to the Closeout Memo, prosecutors and investigators “all specifically remember the ‘Café Soul’ file was empty.” (Id. at 7). Prosecutors obtained copies of approximately nine boxes of documents that were then bates numbered and provided to defense counsel.

Six months later, on June 21, 2010, Dr. Carey-Shuler was deposed by defense counsel. She was confronted with two documents that had never been provided to the prosecutors and that appeared to be earlier drafts of her February 15, 2005 letter with handwritten notations. CareyShuler identified her handwriting, but said that she had no recollection of preparing the letter. During her deposition, Dr. Carey-Shuler testified that she did not recall writing the letter, did not recall speaking to anyone about its contents, could not confirm it had been in her files, but “it look[ed] like [her] handwriting, so [she] must have approved it.” (Id. at 9).

Investigators then contacted the Miami Dade County Commission’s custodian of records to learn more about the circumstances of how Ms. Spence-Jones and her counsel discovered the documents. According to the Closeout Memo, sign-in logs and witnesses confirmed that Ms. Spence-Jones, her counsel, and several “third parties with an expressed interest in her case” visited the County Building on March 8, 2010 to review Carey-Shuler’s files. The boxes were placed in the same room where they had been reviewed by the State, and the same county employee — who had stayed in the conference room with the state investigators during their review of the documents — was initially present. However, citing attorney-client privilege, Ms. Spence-Jones’ counsel demanded that the county employee leave, and after a call to the county attorney, the county employee did so. The Closeout Memo states: “[a] short while later, the two drafts of the Dr. Carey-Shuler letter, along with several other documents relating to the Café Soul project surfaced in the previously empty Café Soul file.” (Id. at 10).

The case against Ms. Spence-Jones was premised on the submission of three fraudulent letters to MMAP redirecting the $50,000 to Karym. With the discovery of the February 15th draft letters and the inability or unwillingness of Dr. CareyShuler to remember or explain why she appeared to draft the letter, the prosecutors determined that their case “ha[d] disintegrated to the point that, at [that] juncture, [they were] unable to proceed in good faith.” According to the Closeout Memo, the prosecutors:

believed at the time of arrest of Michelle Spence-Jones that the crime of Second Degree Theft of funds belonging to Miami Dade County had been committed when the $50,000 in grants from MMAP were diverted from the intended recipients to Karym Ventures, Inc. We still believe so today. The law requires the State to prove beyond a reasonable doubt in court that the defendant, Michelle Spence-Jones committed the crime of grand theft in the second degree. However, based upon circumstances which have occurred since the time of arrest, and which were beyond our control, we are presently unable to meet the burden of proving the case beyond a reasonable doubt.

On August 23, 2011, charges against Ms. Spence-Jones in the Carey-Shuler case were dismissed. (Compl. ¶ 551).

B. Reclaim and Build the Dream Reception Honoring Dr. Barbara Carey-Shuler

Described in the Complaint as “Another Case, Another Fraud,” a second prosecution of Ms. Spence-Jones ended in an acquittal. The events giving rise to this aspect of the case transpired after Ms. Spence-Jones was elected to the Miami City Commission in 2005. According to the Complaint the City of Miami planned a benefit, scheduled for April 3, 2006, in honor of Commissioner Carey-Shuler, who by then had retired from the Miami-Dade County Commission. Ms. Spence-Jones, along with another Commissioner, was “tasked to host the event in [Carey-Shuler’s] honor, and to benefit a charity called the Friends of MLK (“FMLK”).” (Compl. ¶ 402). FMLK was a charity whose mission was to advance the vision and goals of the Reverend Martin Luther King, Jr., and a co-sponsor of the event. (Id. ¶ 402). According to the Complaint, “Spence-Jones’ office undertook the fundraising for the official City of Miami benefit.” (Id. ¶ 403).

Armando Codina is a prominent developer in Miami, and, together with Ricardo Glas, was involved with a downtown highrise project. (Id. ¶¶ 392-93; State’s Traverse and Response to the Defendant’s Sworn Motion to Dismiss, 17-18 (“Traverse”)). In connection with the project, the developers sought an extension of Brickell Avenue from the Miami City Commission. (Compl. ¶ 393; Traverse, 18). While the matter was pending before the City Commission, an assistant in Ms. Spence-Jones’ office contacted Mr. Codina soliciting a contribution to the FMLK charity. (Compl. ¶ 407).

According to the complaint, “[djuring this brief charitable solicitation, the assistant never mentioned the trivial street matter pending before the Commission.” (Id. ¶ 408). “The assistant never promised or even implied any ‘tit for tat’ based on Codina’s contribution to the charity.” (Id.).

Unsurprisingly, the State’s Traverse in the criminal case describes the circumstances somewhat differently. Shortly after Mr. Codina appeared before the Commission in support of the requested Brickell Avenue extension, Ms. Spence-Jones is alleged to have directed a member of her staff to obtain a contact number for him. Two days later, and a week before the scheduled vote on the matter, Ms. Spence-Jones directed that a call be placed to Mr. Codina. During the call, Ms. Spence-Jones (or a staff member at her direction) solicited $25,000 from Mr. Codina to be paid to the FMLK Trust, which did not exist at the time. (Traverse, p. 19). According to Mr. Codina, he

Became very concerned when he received the telephone call because of the matter pending before the Defendant and the City Commission. He is not sure who he spoke with that day; however, it was clear that he was “asked to donate” $25,000 to the FMLK Trust in order to help sponsor the event honoring Barbara Carey-Shuler.... According to Mr. Codina, despite his concerns about the propriety of the solicitation, he decided to pay since he didn’t want ‘to poke the Commissioner in the eye’ with the important vote on the Brickell issue just one week away. Mr. Codina decided to write a check for $12,500, and decided to call Mr. Glas, who was the owner and developer of the METI project to get him to write a check for the remaining $12,500.

(Id., pp. 19-20).

According to the Complaint, “[j]ust as they had in the Carey-Shuler case, the SAO Defendants lied to, manipulated and withheld evidence from the chief prosecution witness, this time Codina, in an effort to manufacture probable cause to arrest and then charge Spence-Jones.” (Compl. ¶ 427). “[A]s a result of Scruggs’ and Fielder’s outright lies, fabrications, and threats, Codina provided a sworn statement to aid the prosecution, via an interstate telephone call.” (Id. ¶ 452). “The Indictment was largely based on Codina’s testimony.” (Id. ¶ 62).

The Complaint alleges that Defendant Scruggs falsely told Mr. Codina that the FMLK was a fake, non-legitimate charity run and controlled by Spence-Jones, and that she “used the charity money as her personal piggybank.” (Id. ¶¶ 430, 432, 441, 453). “Because of this manipulation, Codina referred to the FMLK as a “fake charity” being run out of her [Spence-Jones’] office.” (Id. ¶ 453). The Complaint does not describe why Ms. Spence-Jones would use her city staff to solicit funds for a private charity or send Mr. Codina an e-mail stating “[t]hanks again for your time and support of the MLK Trust Fund.” (Id. ¶ 407). However, the State’s Traverse and the Closeout Memo explain why these events attracted the interest of prosecutors.

According to the Traverse, in March of 2004 Ms. Spence-Jones approached Reverend Gaston Smith and suggested he create a non-profit corporation called Friends of MLK, Inc. No activity took place until January 2005, when Ms. Spence-Jones told Reverend Smith that Dade County Chairperson Barbara Carey-Shuler had awarded FMLK a $25,000 grant and that he only had to complete some paperwork to receive the funds. Reverend Smith was surprised because FMLK had never applied for any funds. As noted above, Ms. Spence-Jones told Mr. Simmons, the contract manager for MMAP, that she would put him in touch with the FMLK, most likely through Reverend Smith. Ms. Spence-Jones told Reverend Smith that she would be a “consultant” for FMLK for a fee of $8,000, and that her duties would include fundraising. (Traverse, 14-15).

A check for $25,000 was issued by Miami-Dade County in June 2005. The Traverse alleges that Ms. Spence-Jones received $8,000 as a fundraising consultant and Reverend Smith took $17,000. Reverend Smith was convicted in December 2009 for the theft of most of the $17,000. When Ms. Spence-Jones was elected to the Miami City Commission in November 2005, FMLK had been dissolved as a nonprofit corporation for failure to file an annual report. However, in January 2006, Ms. Spence-Jones solicited a $20,000 contribution to assist in the renovation of the Lyric Theatre in Overtown. The contribution was solicited for the FMLK Trust, an entity which was nonexistent, but the money was placed in the account of FMLK, Inc. (Id. at 16).

The Traverse alleges that by January 2006, FMLK, Inc. existed only as a bank account and the FMLK Trust did not exist at all. However, according to the Traverse, city staff in Spence-Jones’ Commission office told prosecutors that, “FMLK (whether Inc. or Trust) was totally controlled by [Spence-Jones] using city employees on city time.” (Id.). The Traverse alleges that as of April 2006, FMLK had raised $45,000 — the $25,000 from Dade County, arranged by Dr. Carey-Shuler, and the $20,000 contribution for renovation of the Lyric Theatre. The prosecutors contended that Ms. Spence-Jones directed $20,000 to be spent on the benefit honoring Dr. Carey-Shuler, that she took $8,000 for her fundraising efforts, and that Reverend Smith stole the remaining $17,000. (Id. at 17).

On March 18, 2010, Ms. Spence-Jones filed a Motion to Dismiss or, in the Alternative for Statement of Particulars and Incorporated Memorandum of Law. Attached to the Motion as Attachment 2 was a statement from Mr. Codina that he had responded to a request from Ms. Spence-Jones to contribute to an event honoring County Commissioner Barbara CareyShuler, that there was no expectation of a favorable vote from Commissioner Spence-Jones, and he would have made the contribution whether there was something pending or not. The Motion was denied on October 18, 2010.

The Spence-Jones trial lasted from February 28, 2011 to March 16, 2011. (Compl. ¶ 515). Mr. Codina testified that his contribution “was not ‘tit for tat.’ If I thought for a second it had been, I would not have given the check.” (Id. ¶ 524). After deliberating for fewer than ninety (90) minutes, the jury acquitted Ms. Spence-Jones on all counts. (Id. ¶ 525). On August 24, 2011, the Governor restored Commissioner Spence-Jones to office following her acquittal. She received full back pay and the emoluments and allowances for the period of her supervision. Spence-Jones v. Dunn, 118 So.3d 261, 262 (Fla. 3d DCA2013).

III. Analysis

This ease presents a text book example of the reasons underlying a prosecutor’s immunity. It requires me to analyze: (1) immunity from suit; (2) qualified immunity from damages; and (3) Florida law delineating a prosecutor’s responsibilities. Because of the conclusory nature of the allegations of the Complaint and its transparent attempt to plead around these immunities, I must also apply judicial experience and common sense to the context-specific task of determining whether there is a plausible claim of relief. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

A. Immunity from Suit

Almost forty years ago, in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), Justice Powell wrote, “The question presented in this case is whether a state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution is amenable to suit under 42 U.S.C. § 1983, for alleged deprivations of the defendant’s constitutional rights.” The plaintiff in that case, Paul Imbler, was imprisoned for ten years after conviction for felony murder. He was released after a federal judge concluded that the principal identification witness, who subsequently recanted his testimony, lied about his background and presented misleading testimony at trial. The district judge also ruled that either the prosecutor or a police officer present in the courtroom knew that the testimony was misleading and that the prosecutor had “cause to suspect” its falsity. After his release, Imbler sued the prosecutor alleging that he had allowed the witness to testify, that he knew Imbler had passed a lie detector test, and that he had used a police artist’s sketch during the trial that had been altered to resemble Imbler.

The Supreme Court held that the prosecutor was absolutely immune from a § 1983 suit for damages while acting within the scope of his prosecutorial duties. The Court pointed out that without absolute immunity, such actions “could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the attribution of improper and malicious actions to the State’s advocate.” Id. at 425, 96 S.Ct. 984. “[I]f the prosecutor could be made to answer in court each time such a person charged him with wrongdoing, his energy and attention would be directed from the pressing duty of enforcing the criminal law.” Id. Acknowledging that most executive branch officials were entitled only to qualified immunity the Court concluded that “qualifying a prosecutor’s immunity would disserve the broader public interest ... because it would prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system.” Id. at 427-28, 96 S.Ct. 984.

Attaining the [criminal justice] system’s goal of accurately determining guilt or innocence requires both the prosecution and the defense have wide discretion in the conduct of trial and the presentation of evidence. The veracity of witnesses in a criminal case frequently is subject to doubt before and after they testify, as is illustrated by the history of this case. If prosecutors are hampered in exercising their judgment as to the use of such witnesses by concern about resulting personal liability, the triers of fact in criminal cases often would be denied relevant evidence.

Id. at 426, 96 S.Ct. 984.

These concerns are particularly acute in cases involving public officials and alleged public corruption. “A prosecutor often must decide, especially in cases of wide public interest, whether to proceed to trial where there is a sharp conflict in the evidence. The appropriate course of action in such a case may well be to permit a jury to resolve the conflict. Yet a prosecutor understandably would be reluctant to go forward with a close case where an acquittal likely would trigger a suit against him for damages.” Id. at 427, 96 S.Ct. 984.

The Court concluded that the burden that would be placed upon prosecutors defending civil damage claims would severely harm the justice system. “[S]uits that survived the pleadings would pose substantial danger of liability even to the honest prosecutor.” Id. at 425, 96 S.Ct. 984. The presentation of issues surrounding a prosecutor’s conduct in a § 1983 action “would require a virtual retrial of the criminal offense.” Id. “Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender color-able claims of constitutional deprivations.” Id. “Defending these decisions ... could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials.” Id.

In Imbler, the Court also recognized that a prosecutor’s immunity extended to “actions preliminary to the initiation of a prosecution and actions apart from the courtroom.” Id. at 431, 96 S.Ct. 984.

A prosecuting attorney is required constantly, in the course of his duty as such, to make decisions on a wide variety of sensitive issues. These include questions of whether to present a case to a grand jury, whether to file an information, whether and when to prosecute, whether to dismiss an indictment against particular defendants, which witnesses to call, and what other evidence to present. Preparation both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence.

Id. at 431, 96 S.Ct. 984.

The Supreme Court emphasized that it is the interest in protecting the functioning of the prosecutor’s office, not its occupant, that is of primary importance. In Imbler, the Court did not define the outer limits of the prosecutor’s absolute immunity, but it did recognize that some official activities would not be encompassed, such as “those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than an advocate.” Id. at 430-31, 96 S.Ct. 984.

In subsequent cases, the Court has further refined its analysis. Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991), held that a prosecutor’s appearance in court in support of an application for a search warrant and the presentation of evidence at that hearing were protected by absolute immunity. The Court further decided, however, that since providing legal advice to the police was not a function closely associated with the judicial process, a prosecutor’s advice on the propriety of hypnotizing a subject and on whether probable cause existed to arrest the subject was only entitled to qualified, not absolute, immunity. Id. at 494-95, 111 S.Ct. 1934. Similarly, in Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), the Court held that holding a press conference “does not involve the initiation of a prosecution, the presentation of the State’s case in court, or actions preparatory for these functions.” Id. at 278, 113 S.Ct. 2606. While statements to the press may be an integral part of a prosecutor’s job and may serve a vital public function, in this respect a prosecutor is no different than other executive officials who deal with the press and qualified immunity is therefore the norm. Id.

In Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997), the Court held that a prosecutor’s actions in preparing charging documents, such as an information and a motion for an arrest warrant, were protected by absolute immunity, but that her action in personally attesting to facts in a certification for probable cause was subject to qualified immunity because she was acting as a complaining witness rather than as a lawyer. Id. at 129-31,118 S.Ct. 502.

In a case relevant to certain allegations here, the Court has also considered whether absolute immunity extended to a failure to disclose impeachment material due to: (1) a failure to properly train prosecutors; (2) a failure to properly supervise prosecutors; or (3) a failure to establish an information system containing potential impeachment. Van de Kamp v. Goldstein, 555 U.S. 335, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009). As in Imbler, plaintiff Gold-stein’s § 1983 action arose after a successful habeas petition. He claimed: that he was wrongfully convicted of murder based on the testimony of a jailhouse informant, Edward Floyd Fink; that Fink’s testimony was unreliable, indeed false; that Fink had received reduced sentences for favorable testimony in other cases; that some prosecutors in the Los Angeles District Attorney’s Office knew about the favorable treatment; and that the district attorney’s failure to provide his attorney with this impeachment information had led to the conviction. Id. at 339, 129 S.Ct. 855. After an evidentiary hearing the district court agreed that Fink had been untruthful and further that if the prosecution had disclosed the information it might have made a difference. The court ordered the State to either grant Goldstein a new trial or to release him. Rather than retry Goldstein, who had already served twenty-four (24) years of his sentence, the state decided to release him.

Goldstein sued the former Los Angeles District Attorney and Chief Deputy District Attorney alleging that the prosecution’s failure to disclose the facts about Fink’s earlier testimony-related rewards violated the prosecution’s constitutional duties under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and resulted from the failure of the office’s chief supervisory attorneys to train and supervise the prosecutors who worked for them as well as their failure to establish an information system about informants.

The Supreme Court unanimously held that prosecutors involved in such supervision or training or information system management were entitled to absolute immunity:

These claims focus upon a certain type of administrative obligation ... a kind that itself is directly connected with the content of a trial. Here, unlike with other claims related to administrative decisions, an individual prosecutor’s error in the plaintiffs specific criminal trial constitutes an essential element of the plaintiffs claim.

Id. at 344, 129 S.Ct. 855.

The Court noted that decisions about indictment or trial prosecution will often involve more than one prosecutor within an office. Id. at 345, 129 S.Ct. 855. Moreover, the faulty training claim rested in necessary part upon a consequent error by an individual prosecutor in the midst of a specific plaintiffs trial. The Court found that its concern in Imbler, that the threat of damages liability for an error could lead a trial prosecutor to take account of that risk when making trial-related decisions, applied equally to more widespread liability throughout the office tied to that same trial error. Id. at 346-47, 129 S.Ct. 855. “Most important,” said the Court, “the ease with which a plaintiff could restyle a complaint charging a trial failure so that it becomes a complaint charging a failure of training or supervision would eviscerate Imbler.” Id. at 347, 129 S.Ct. 855.

Just last year the Supreme Court decided a case which reflects application of its functional approach to absolute immunity in a factual posture with particular relevance to the allegations in this case. Rehberg v. Paulk, — U.S. -, 132 S.Ct. 1497, 182 L.Ed.2d 593 (2012). Since the case arose in the Eleventh Circuit, and because the allegations in Rehberg bear similarity to allegations in this case, it is useful to analyze both the opinions of the Court of Appeals and the Supreme Court.

Alleging four federal § 1983 claims, Rehberg sued a Georgia District Attorney, a specially appointed prosecutor, and the district attorney’s chief investigator after being indicted three times and after all charges were dismissed by the state court. The Court of Appeals described the alleged pre-indictment conduct as follows:

Hodges (the District Attorney) and Paulk (the Chief Investigator), acting as investigators, got together as a favor to the hospital, with malice and without probable cause, and made up a story about Rehberg, and then Paulk (at Hodge’s direction) told that fake story under oath to the grand jury, leading to Rehberg’s indictment and arrest.

Rehberg v. Paulk, 611 F.3d 828, 840 (11th Cir.2010). The Court described the question before it as “whether absolute immunity applies to the alleged conspiracy decision in the investigative stage to make up and present Paulk’s false testimony to the grand jury.” Id. at 840-41. Relying on prior precedent, including Mastroianni v. Bowers, 173 F.3d 1363 (11th Cir.1999), Jones v. Cannon, 174 F.3d 1271 (11th Cir.1999), and Rowe v. City of Ft. Lauderdale, 279 F.3d 1271 (11th Cir.2002), the Court held that since Paulk had absolute immunity for-his false testimony before the grand jury, both he and the district attorney were similarly immune for their alleged conspiracy to fabricate and present false testimony. To hold otherwise, the Court concluded, would eviscerate absolute immunity as well as the purpose it serves. (“To allow a § 1983 claim based on subordination of perjured testimony where the alleged perjured testimony itself is cloaked in absolute immunity would be to permit through the back door what is prohibited through the front.”). Rowe, 279 F.3d at

1282.

In affirming the Eleventh Circuit, the Supreme Court applied its “functional approach,” and agreed that grand jury witnesses should be accorded the same absolute immunity as witnesses at trial. Rehberg, 132 S.Ct. at 1499. Moreover, the Court stated:

[Tjhis rule may not be circumvented by claiming that a grand jury witness conspired to present false testimony or using evidence of the witness testimony to support any other § 1983 claim concerning the initiation or maintenance of a prosecution. Were it otherwise, “a criminal defendant turned civil plaintiff could simply reframe a claim to attack the preparation instead of the absolutely immune actions themselves.” ... In the vast majority of cases involving a claim against a grand jury witness, the witness and the prosecutor conducting the investigation engage in preparatory activity, such as a preliminary discussion in which the witness relates the substance of his intended testimony. We decline to endorse a rule of absolute immunity that is so easily frustrated.

Id. at 1507 (internal citations omitted).

B. Qualified Immunity

Qualified Immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing: (1) that the official violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the challenged conduct. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity gives government officials breathing room to make reasonable, but mistaken judgments about open legal questions. When properly applied, it protects “all but the plainly incompetent or those who violate the law.” Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).

If an official was acting within the scope of discretionary authority, the burden shifts to the Plaintiff to show that qualified immunity is inappropriate. McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir.2009). The government official is entitled to qualified immunity unless the Plaintiff can show: first, that the facts viewed in the light most favorable to the Plaintiff establish a constitutional violation by the official, and second, that the unlawfulness of the Defendant’s actions was clearly established at the time of the incident. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The inquiry concerning whether a right is clearly established must be undertaken in light of the specific context of the case, not as a broad general proposition. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.2002).

C. Florida Law

Pursuant to the Florida Constitution, in each judicial circuit within the State — and there are twenty — a state attorney shall be elected for a four-year term and “shall be the prosecuting officer of all trial courts in that circuit....” Fla. Const, art. I, § 15. Except for capital crime, most prosecutions in Florida are initiated by information. Section 27.04 of the Florida Statutes provides in pertinent part as follows:

The state attorney shall have summoned all witnesses required on behalf of the state, and he is allowed the process of his court to summon witnesses from throughout the state ... to testify before him as to any violation of the criminal law upon which they may be interrogated, and he is empowered to administer oaths to all witnesses summoned to testify by the process of his court or who may voluntarily appear before him to testify as to any violation or violations of the criminal law.

Id. Florida Rule of Criminal Procedure 3.140(g) provides:

An information charging the commission of a felony shall be signed by the state attorney, or a designated state attorney, under oath stating his good faith in initiating the prosecution and certifying that he has received testimony under oath from the material witness or witnesses for the offense. Id.

The Florida Supreme Court has said that the primary purpose of allowing criminal charges to be brought by information is “[t]he undoubted benefits from the continued presence and functioning in each judicial circuit of some trained and responsible officer representing the state vested with the very grave but necessary authority of initiating prosecutions.... ” Hall v. State, 136 Fla. 644, 187 So. 392, 399 (1939). One of these benefits, according to the court, is the reduction of expense and delay involved in frequent summoning of grand juries. Id.

A pre-filing conference held for the purpose of taking sworn testimony from witnesses is a necessary predicate to the filing of an information, “[IJnfluencing as it may the discretionary decision to file criminal charges against another,” it has been characterized as both “quasi-judicial” and an “official proceeding.” State v. Witte, 451 So.2d 950, 954 n. 8 (Fla. 3d DCA 1984) (citing Hall, 187 So. 392). Pre-filing conferences have been held to be the equivalent of grand jury testimony in terms of application of the felony perjury statute. “[A] proceeding is not made official by the formality with which it is conducted; instead, its officiality depends on its purpose and the authority from which it derives.” Id. at 953. Florida courts have described the state attorney in non-capital cases as acting as a one-person grand jury. See Doe v. State, 634 So.2d 613, 615 (Fla.1994); Imparato v. Spicola, 238 So.2d 503, 506 (Fla. 2d DCA 1970).

“Under Florida’s Constitution, the decision to charge and prosecute is an executive responsibility and the state attorney has complete discretion in deciding whether and how to prosecute.” State v. Bloom, 497 So.2d 2, 3 (Fla.1986). Further, under the Florida Constitution, the Governor is the chief law enforcement officer of the state and responsible for taking “care that the laws be faithfully executed.” Fla. Const, art. IV, § 1(a). He also possesses the power to suspend from office state officers not subject to impeachment, and “any elected municipal officer indicted for crime may be suspended from office until acquitted.” Id. § 7. Moreover, Section 112.51(2) of the Florida Statutes provides:

Whenever any elected or appointed municipal official is arrested for a felony or for a misdemeanor related to the duties of office or in indicted or informed against for the commission of a federal felony or misdemeanor or state felony or misdemeanor, the Governor has the power to suspend such municipal official from office.

Id.

IV. Claims for Relief

Having reviewed the law of absolute and qualified immunity, as well as Florida law with respect to a state attorney and the governor’s authority to suspend municipal officials, I turn to the allegations of the Complaint.

It’s not an easy task. The amended complaint is a “shot gun” pleading of the sort the Eleventh Circuit “has been roundly, repeatedly, and consistently condemning for years.” Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 n. 54 (11th Cir.2008). And as was the case in Daw’s, the pleading strategy employed by Plaintiffs counsel seems not to have been taken out of ignorance, but, instead, is deliberate and calculated as part of the effort to plead around immunity. The Complaint contains several counts, each incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts contain irrelevant factual allegations and legal conclusions. Strategic Income Fund v. Spear, Leeds & Kellogg, 305 F.3d 1293, 1295 (11th Cir.2002). It buries material allegations “beneath innumerable pages of rambling irrelevancies” making no distinction between the defendants engaged in the various alleged acts, i.e. “the SAO defendants.” See Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir.2001).

While I was tempted to order another amended complaint, I was also cognizant that a purpose of absolute and qualified immunity is to spare a prosecutor’s office the burden and expense of litigation. “[E]ntitlement to absolute immunity must be determined as early as possible.” Marx v. Gumbinner, 855 F.2d 783, 788 (11th Cir.1988). Moreover, a plaintiff must not be permitted through shotgun pleadings containing allegations of generalized abstract rights to strip government officials of the protection provided by immunity doctrine. Id. at 792. So I stayed discovery, attempted to wade through the allegations, and held oral argument to help sift through the detritus.

A. First and Second Claims for Relief: “Fabrication and Concealment of Evidence”

Iqbal directs that I first identify allegations of the complaint that because of their conclusory nature are not entitled to the assumption of truth. Among those are: paragraph 605, “The SAO Defendants acted with a knowing, willful, wanton, grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of Plaintiffs rights, privileges, welfare, and well-being and are guilty of egregious and gross misconduct toward Plaintiff’; paragraph 607, “In violation of the First Amendment, the SAO Defendants targeted Spence-Jones because of her political position, because she opposed the Mayor, and in order to deprive her of her right to hold public elected office”; paragraph 600, “Rundle, Scruggs, and Fielder, acting individually and in concert, knowingly and intentionally concealed evidence”; and paragraph 601, “In knowingly and intentionally concealing such evidence, Rundle and Scruggs (and of course, Fielder) were not acting as advocates, but were instead acting as police officers investigating a case.” The Complaint lumps the Defendants together, makes conclusory and abstract allegations about fabrication/concealment of evidence, and hides rather than illuminates the facts giving rise to the claim. This is an effort to disguise how implausible and fanciful the claims actually are. The Supreme Court has specifically warned against allowing generalized pleading of abstract rights to transform a guarantee of immunity into a rule of pleading. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Setting aside the conclusions and hyperbole, the facts pertinent to the “fabrication and concealment” claims are as follows:

On September 10, 2009, pursuant to a subpoena, Mr. Scruggs and Mr. Fielder met with Dr. Carey-Shuler and her attorney. (Compl. ¶275; Closeout Memo, p. 7). Scruggs allegedly threatened Dr. Carey-Shuler, accused her of receiving cash payments with respect to county business, said that Ms. Spence-Jones and Rev. Gaston-Smith had misspent funds earmarked for the Friends of Martin Luther King, and that Ms. Spence-Jones had taken money designated for Café Soul. (Compl. ¶¶ 276-77). According to the Closeout Memo, Dr. Carey-Shuler expressed shock and outrage that Ms. Spence-Jones had used her name to obtain the $50,000 that she had intended go to Timbuktu and Osun Village. Dr. Carey-Shuler and her attorney were asked to return for a sworn statement on September 18, 2009. They were told that if Dr. Carey-Shuler’s statements were false she would be prosecuted for perjury; however, if they were true Ms. Spence-Jones would be arrested. (Closeout Memo, p. 7).

On September 18, 2009, Dr. Carey-Shuler, again represented by counsel, provided a sworn statement that was the basis for prosecution. (Compl. ¶¶ 285-93). Mr. Scruggs questioned Dr. Carey-Shuler, and Mr. Fielder was present. {Id. ¶¶ 287-88). According to the Closeout Memo the following testimony was given:

Q: [D]id you, in any way intend for Karym Ventures to get the money from Timbuktu Marketplace and Osun Village?

A: Absolutely not. I intended it to go to groups that I allocated it to at that budget meeting.

Q: Are you surprised by the fact that this money got reallocated apparently by her to herself using your name and position?

A: Yes, I am surprised.

Q: Does it?

(Interjection by Mr. Hirsch): Last week you used, discussing with me you said you were shocked.

A: Yes, because I thought, yes I did say that because when I read that I was like in shock. This money was supposed to go to these organizations.

Q: Is there any way as you sit here now that you would have allowed her to have this money?

A: Not unless she made a request and came back before the board and somehow we would have reviewed her project. But additional money, we would not have taken it from these groups.

(Closeout Memo. 7-8). According to the Complaint, by September 18, 2009, Mr. Scruggs and Mr. Fielder “knew or should have known” that Dr. Carey-Shuler had requested that MMAP release $50,000 in funding to Karym and “on information and belief’ knew that MMAP had voted to do so. (Compl. ¶¶ 271-72). Thus for Count One, the “fabrication” claimed in the Complaint is Dr. Carey-Shuler’s sworn testimony which Plaintiff alleges was “induced” by Mr. Scruggs. The “concealment” is the belief that when Mr. Scruggs took the sworn statement he knew or should have known, because of the annotated draft letter that allegedly was in Dr. Carey-Shuler’s file, that she had authorized Karym to get the funds, and that he failed to tell this to Dr. Carey-Shuler.

The theory underlying Count Two is similar. The Complaint alleges that Mr. Scruggs and Mr. Fielder met with Armando Codina and his counsel on January 12, 2010. {Id. ¶ 428). Mr. Scruggs allegedly told Mr. Codina that the FMLK was a fake charity, controlled by Ms. Spence-Jones, and that she used its funds as her personal piggy-bank. (Id. ¶¶ 430, 432). On March 2, 2010, “as a result of Mr. Scruggs’ and Mr. Fielder’s outright lies, fabrications, and threats,” Mr. Codina provided a sworn statement. (Id. ¶ 452). The indictment was largely based on Mr. Codings testimony. Again the “fabrication” is alleged to be Mr. Codina’s sworn statement; the “concealment” was not telling Codina that the money went to “a real charity” in connection with a “real charity event.”

I am tempted to find these claims implausible on their face. I question whether the Plaintiff has nudged her claim across the line from conceivable to plausible. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The idea that Mr. Scruggs could bamboozle two sophisticated witnesses, each represented by counsel, into concocting false testimony about the Plaintiff seems highly unlikely. However, in Iqbal, the Supreme Court said that allegations should not be dismissed because of their extravagantly fanciful nature or on the ground they are unrealistic or nonsensical, but instead their conclusory nature. Even assuming the truth, however, of these unlikely allegations, Mr. Scruggs is absolutely immune.

In taking sworn testimony from Dr. Carey-Shuler and Mr. Codina, pursuant to Section 27.04 of the Florida Statutes and Florida Rule of Criminal Procedure 3.140(g), Mr. Scruggs was participating as an advocate for the State in an official proceeding. In Florida, such sworn testimony is a prerequisite for the filing of an information, and is the functional equivalent of grand jury testimony. The sworn testimony and the meeting Mr. Scruggs had with Dr. Carey-Shuler and her counsel and Mr. Codina and his counsel, prior to that testimony were part of, and preliminary to, the initiation of a criminal prosecution to which a prosecutor’s immunity extends. Imbler, 424 U.S. at 431, 96 S.Ct. 984. See also Rehberg, 132 S.Ct. 1497; Mullinax v. McElhenney, 817 F.2d 711, 715 (11th Cir.1987) (“[A] prosecutor is entitled to absolute immunity for the factual investigation necessary to prepare a case, including interviewing witnesses before presenting them to the grand jury.”).

The Complaint is transparent in its attempt to identify some act by Mr. Scruggs outside of the prosecutions themselves or preliminary to their initiation. Plaintiff tries to characterize Mr. Scruggs’ questioning of witnesses as fabrication and concealment and claims that in doing so he was acting as a police officer rather than a prosecutor. By clever pleading the Complaint seeks to evade immunity by invoking case law involving fabrication of physical evidence during the investigative stage of a criminal action. See Buckley, 509 U.S. at 262-64, 113 S.Ct. 2606 (no immunity for prosecutor who fabricated expert testimony linking defendant’s boot with boot print at murder scene); Rowe, 279 F.3d at 1281 (no immunity for fabrication of jump rope); Jones, 174 F.3d at 1289-90 (no immunity for fabrication of boot print); Riley v. City of Montgomery, Ala., 104 F.3d 1247, 1253 (11th Cir.1997) (no immunity for police officer’s planting of cocaine).

Of course, the facts of those cases are very different. But, even more significantly, the effort to circumvent absolute immunity creates yet another bar to the Plaintiffs claims. Simply put, in trying to evade immunity the Plaintiff has pled herself out of court.

Fabrication or concealment of evidence during an investigation does not itself violate the Constitution. This is apparent both from the Supreme Court’s decision in Buckley and also Judge Easterbrook’s opinion for the Seventh Circuit on remand. Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir.1994).

In Buckley, the prosecutor allegedly participated with police officers during the investigative stage of the case well before the grand jury was impaneled and before probable cause existed. The investigation led to unreliable expert testimony concerning a boot print found at the murder scene. The Supreme Court held that the prosecutor’s participation in the investigation was not protected by absolute immunity. However, the majority in Buckley warned against “conflat[ing] the question whether a [Section] 1983 plaintiff has stated a cause of action with the question whether the defendant is entitled to absolute immunity for his actions.” Buckley, 509 U.S. at 275 n. 5, 113 S.Ct. 2606. In concurring, Justice Scalia was even more specific. Responding to the dissent’s concern that absolute immunity might become “little more than a pleading rule” he wrote that such re-framed claims “are unlikely to be cognizable under § 1983, since petitioner cites, and I am aware of, no authority for the proposition that the mere preparation of false evidence, as opposed to its use in a fashion that deprives someone of a fair trial or otherwise harms him, violates the Constitution.” Id. at 281, 113 S.Ct. 2606 (Scalia, J., concurring).