“a public defender does not act under color of state law [as required for a § 1983 suit] when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.”
How later courts described this case
- “a public defender does not act under color of state law [as required for a § 1983 suit] when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.”
- discussing that “[t]he prosecutorial function includes the initiation and pursuit of criminal prosecution,” which falls within prosecutorial immunity
- “The court may dismiss an action sua sponte under [Federal Rule of Civil Procedure 41(b)] for failure to prosecute or failure to obey a court order.”
- “[D]ismissal upon disregard of an order, especially where the litigant has been forewarned, generally is not an abuse of discretion.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
DOMINIQUE FOUNTAIN,
Plaintiff,
v. Case No. 3:25cv491-MW-HTC
ALLISON MCKENZIE, ASA,
KATLYN OROBELLO, PD,
Defendants.
_______________________/
REPORT AND RECOMMENDATION
Plaintiff Dominique Fountain, a pretrial detainee proceeding pro se, has filed
an amended civil rights complaint under 42 U.S.C. § 1983 claiming that
Defendants—Assistant State Attorney Allison McKenzie and Assistant Public
Defender Katlyn Orobello—violated his rights in his underlying state court criminal
case. Doc. 11. After reviewing the amended complaint, the undersigned concludes
this case should be dismissed under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
because Fountain failed to truthfully disclose his litigation history and fails to state
a claim against the Defendants. Additionally, Fountain also failed to comply with
the orders of the Court.
I. Background
The following facts are taken from Fountain’s complaint and accepted as true
for purposes of this report and recommendation.
Fountain, a pretrial detainee at the Escambia County Jail, alleges that on
March 4, 2025, the alleged victim in Escambia County Circuit Court Case #17-25-
CF-359A met with Assistant State Attorney McKenzie. Despite the victim signing
a sworn affidavit stating she did not want to pursue charges, Fountain remains
“falsely imprisoned” in Escambia County Jail. On several occasions, he “requested”
Assistant Public Defender Orobello file a demand for speedy trial, which she
“denied.” And “[o]n April 15, a Nelson hearing was held in Escambia County about
the matter. Judge Miller found she was effective at which time is be appealed.”
Based on these allegations, he claims McKenzie violated his Fourteenth
Amendment due process and equal protection rights and that Orobello violated his
Sixth Amendment right to a speedy trial—“which also violates [his] U.S. 14th
Amendment rights.” As relief, he seeks monetary damages.
II. Legal Standard
Because Fountain is a pretrial detainee seeking to proceed in forma pauperis
and seeking relief from government employees or entities, the Court must dismiss
his complaint, or any portion thereof, if it determines it is frivolous or malicious,
fails to state a claim on which relief may be granted, or seeks monetary relief against
a defendant who is immune from such relief. See 28 U.S.C. §§ 1915A(b);
1915(e)(2)(B) (requiring similar screening to plaintiffs seeking to proceed in forma
pauperis).
To state a claim, Fountain must plead factual content which allows the Court
to draw the reasonable inference that Defendants are liable for the misconduct
alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must liberally
construe Fountain’s pro se allegations, Haines v. Kerner, 404 U.S. 519, 520-21
(1972), but conclusory allegations and legal conclusions couched as factual
allegations are not entitled to a presumption of truth. Iqbal, 556 U.S. at 681;
Papasan v. Allain, 478 U.S. 265, 286 (1986).
III. Discussion
A. Failure to Truthfully Disclose Litigation History
Fountain failed to truthfully disclose his litigation history on the amended
complaint form he submitted to this Court. See Doc. 11. Section VIII. of the Court’s
approved complaint form requires plaintiffs to disclose their prior litigation history.
The form advises plaintiffs that “failure to disclose all prior state and federal cases
… may result in the dismissal of this case.” Doc. 11 at 8. The form also advises
plaintiffs to “err on the side of caution” if they are uncertain about whether a case
should be identified. Id.
Based on this Court’s independent investigation, Fountain has failed to
disclose, at least, the following cases: Fountain v. Leon County Detention Facility,
et al., No. 4:18-cv-292-RH-CAS, at Doc. 6 (N.D. Fla. Sept. 27, 2018) (lawsuit
challenging either conditions of confinement or conviction, which Fountain
voluntarily dismissed prior to service); Fountain v. Andy Rogers, No. 4:18-cv-287-
MW-CAS, at Doc. 6 (N.D. Fla. Sept. 27, 2018) (lawsuit challenging conviction,
which Fountain voluntarily dismissed prior to service); and Fountain v. Andy
Rodgers, Justin Ward, & Walt McNeil, No. 4:18-cv-283-WS-CAS, at Doc. 6 (N.D.
Fla. Sept. 27, 2018) (lawsuit challenging either conditions of confinement or
conviction, which Fountain voluntarily dismissed prior to service). Fountain needed
to disclose these cases in response to Question VIII.A., which asked, “Have you had
any case in federal court, including federal appellate court, dismissed as frivolous,
as malicious, for failure to state a claim, or prior to service” and in response to
Question VIII.C., which asked if he had filed any suits “challenging your conviction
or relating to the conditions of your confinement.” Doc. 11 at 9-10.
Despite his omissions, Fountain signed the complaint “under penalty of
perjury, that all of the information stated above and included on or with this form,
including my litigation history, is true and correct.” Id. at 12-13. An appropriate
sanction for Fountain’s failure to provide the Court with true factual responses is to
dismiss this case without prejudice. See Bratton v. Sec’y DOC, 2012 WL 2913171,
at *1 (M.D. Fla. July 16, 2012) (dismissing the case without prejudice when prisoner
failed to disclose one prior federal case that was dismissed under 28 U.S.C. §
1915(e)(2)); Johnson v. Crawson, No. 5:08cv300-RS-EMT, 2010 WL 1380247, at
*2 (N.D. Fla. Mar. 3, 2010) (same); see also Strickland v. United States, 739 F. App’x
587, 588 (11th Cir. 2018) (“A sanction less than dismissal would signal that a failure
to disclose filings is an infraction without consequence.”). As one district judge from
this District stated in an order of dismissal for failure to disclose, “If the requirement
for prisoner plaintiffs to disclose their prior lawsuits is to serve its purpose, a plaintiff
must provide accurate information. If word got around the prisons that inaccurate
or incomplete information could be provided with no effective sanction, the form
would serve little purpose.” Rodriguez v. Inch, No. 4:19cv191-RH-HTC, Doc. 52
(N.D. Fla. June 7, 2020).
Indeed, “[a] plaintiff’s affirmative misrepresentation regarding his prior
litigation history, when the complaint form required disclosure of such history and
the plaintiff’s statements were made under penalty of perjury, constitutes abuse of
the judicial process warranting dismissal of the case without prejudice as ‘malicious’
under § 1915(e)(2)(B)(i) and § 1915A(b)(1).” Ealy v. CCA, 2015 WL 9647546, at
*1 (N.D. Fla. Dec. 18, 2015) (collecting Eleventh Circuit cases affirming dismissals
without prejudice where plaintiffs failed to disclose their prior litigation history).
B. Defendants McKenzie and Orobello
Even had Fountain truthfully disclosed his litigation history, this matter would
still need to be dismissed because Fountain cannot state a claim under § 1983 against
the Defendants. First, Assistant State Attorney, McKenzie is immune from liability
for actions taken in pursuit of a criminal prosecution. See Hoffman v. Office of State
Attorney, Fourth Judicial Circuit, 793 F. App’x 945, 950 (11th Cir. 2019) (“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.”) (internal quotations and citations omitted). This immunity applies to
McKenzie’s decision to prosecute Fountain, which forms the basis of Fountain’s
instant claim against her. See Rivera v. Leal, 359 F.3d 1350, 1353 (11th Cir. 2004)
(discussing that “[t]he prosecutorial function includes the initiation and pursuit of
criminal prosecution,” which falls within prosecutorial immunity) (internal citations
omitted). And Fountain does not allege any facts showing McKenzie acted outside
the scope of her jurisdiction, which would otherwise preclude application of
prosecutorial immunity. See Smith v. Belle, 321 F. App’x 838, 845 (11th Cir. 2009)
(finding district court did not err in dismissing claim brought against prosecutor
because allegation of prosecuting the plaintiff, despite prosecutor knowing the
falsity of the underlying allegations, still fell within prosecutor’s “function as an
advocate for the government, and there is no allegation that she was acting outside
the jurisdiction of her office”).
Similarly, Orobello, who was Fountain’s public defender, cannot be sued
under § 1983. See Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (“a public
defender does not act under color of state law [as required for a § 1983 suit] when
performing a lawyer’s traditional functions as counsel to a defendant in a criminal
proceeding.”). As such, Fountain’s claims against McKenzie and Orobello fail.
C. Failure to Follow Orders of the Court
Finally, Fountain also failed to follow the orders of the Court. Namely, on
April 11, 2025, the Court ordered Fountain to, within twenty-one (21) days, file a
complete motion to proceed in forma pauperis on this Court’s forms or pay the filing
fee. Doc. 7. The Court warned Fountain that failing to comply with it may result in
a recommendation that this case be dismissed. Id. However, Fountain has not
responded to or complied with the April 11 Order. Based on the foregoing, dismissal
of this case is appropriate. See Brown v. Tallahassee Police Dep’t, 205 F. App’x
802, 802 (11th Cir. 2006) (“The court may dismiss an action sua sponte under
[Federal Rule of Civil Procedure 41(b)] for failure to prosecute or failure to obey a
court order.”) (citations omitted); Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.
1989) (“[D]ismissal upon disregard of an order, especially where the litigant has
been forewarned, generally is not an abuse of discretion.”) (citations omitted).
Accordingly, it is RECOMMENDED:
1. That this case be DISMISSED WITHOUT PREJUDICE under 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b) as malicious for Fountain’s abuse of the
judicial process and for failing to state a claim. Also, dismissal is appropriate
because Fountain failed to follow orders of the Court.
2. That the clerk be directed to close the file.
At Pensacola, Florida, this 12th day of May, 2025.
/s/ Hope Thai Cannon
HOPE THAI CANNON
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations may be filed within 14
days of the date of this Report and Recommendation. Any different deadline that
may appear on the electronic docket is for the Court’s internal use only and does not
control. A copy of objections shall be served upon the Magistrate Judge and all other
parties. A party failing to object to a Magistrate Judge’s findings or
recommendations contained in a report and recommendation in accordance with the
provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the
district court’s order based on unobjected-to factual and legal conclusions. See 11th
Cir. R. 3-1.