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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13384
Non-Argument Calendar
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D.C. Docket No. 5:12-cv-00065-RS-CJK
DAVID RANDALL POLK,
Plaintiff – Appellant,
versus
JOE NUGENT,
in his official capacity as Sheriff of Gulf County,
FRANK MCKEITHEN,
RITA PIERCY,
TOM GODWIN,
Defendants - Appellees,
GLENN HESS,
in his official capacity as State Attorney for the
Fourteenth Circuit, et al.,
Defendants.
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Appeal from the United States District Court
for the Northern District of Florida
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(January 24, 2014)
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Before HULL, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
David Polk appeals the district court’s order granting summary judgment as
to his 42 U.S.C. § 1983 claims for malicious prosecution and violation of his right
to due process against Frank McKeithen, former Sheriff of Gulf County, Florida,
Officers Rita Piercy and Tom Godwin, along with the current Sherriff in his
official capacity, based on their actions in connection with Polk’s prosecution for
the alleged rape of an eleven-year-old girl. After several months of discovery but
before the deadline, the defendants moved for summary judgment. Polk moved
under Federal Rule of Civil Procedure 56(d) for more time to complete discovery
and sought relief from a protective order that limited his discovery with respect to
two district attorneys who prosecuted him. The district court rendered summary
judgment in the defendants’ favor on each of Polk’s federal claims, declined to
exercise supplemental jurisdiction over his state claims, and denied his motions for
further discovery. This is Polk’s appeal.
I.
In 1999, a friend at whose home Polk had been sleeping told police that Polk
had raped his daughter. Investigators, including Officer Piercy, conducted a
videotaped interview of the child, during which she described the encounter in
excruciating detail. Officers Piercy and Godwin testified that, based upon their
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experience, the level of detail and the alleged victim’s demeanor during the
interview led them to conclude she was telling the truth. During a sexual assault
examination conducted at a hospital, however, doctors found no injuries or traces
of Polk’s bodily fluid, even though the child told authorities she had not bathed
after the encounter. Police also collected bedding and clothing from the house
where the alleged rape had occurred. Initially, no DNA from Polk was found, but
tests revealed DNA from someone else on a quilt collected at the scene.
Apparently, neither the DNA report nor the medical examination report was
turned over to Polk’s counsel before he entered into a negotiated guilty plea with
state prosecutors in early 2000. Although the DNA report was formally addressed
to Sheriff McKeithen, he testified he never saw the report and that the evidence
custodian, whom Polk did not name as a defendant, was charged under department
practice with delivering it to the prosecuting attorneys and investigating officers.
Officers Piercy and Godwin also testified that they did not recall ever seeing the
report and that they understood department procedure to dictate that, once test
results came back from the laboratory, the evidence custodian assigned to a case
would forward them to the state attorney’s office.
After he was convicted, Polk was sentenced to probation, and, after violating
the terms of his probation, he was incarcerated. During his incarceration, Polk
discovered the DNA tests from the quilt and ultimately succeeded in having his
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conviction vacated. Armed with new DNA evidence matching Polk from a second
quilt recovered at the scene of the alleged rape, prosecutors instituted a second
criminal action against Polk. But in September 2008, a jury found him not guilty.
Polk filed suit against Sheriff McKeithen, Officer Piercy, and Officer
Godwin in their individual capacities and the current Gulf County Sheriff in his
official capacity. 1 After several months of discovery, Polk sought on March 15,
2013, four days before the discovery deadline then in place, to schedule the
depositions of the two assistant state attorneys who prosecuted him. The
defendants agreed with Polk to move for an extension of the discovery deadline,
which the court granted. But the defendants sought a protective order barring the
attorneys’ deposition based upon prosecutorial immunity, which the court also
granted in part, limiting Polk to 10 written questions to each prosecutor. Before
the prosecutors could respond to the questions, however, the defendants moved for
summary judgment. Polk responded, contending the motion was premature and
seeking under Federal Rule of Civil Procedure 56(d) additional time for discovery.
Once he had the prosecutors’ responses to his questions, Polk also filed a motion to
compel, asserting these responses were inadequate. A magistrate judge set the
1
We are informed by the defendants that a new Sheriff has replaced Sheriff Joe Nugent and
should be substituted by operation of law for any further proceedings. See Fed. R. Civ. P. 25(d).
Because there will be no further proceedings, we see no need for an order directing substitution
in this case.
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motion for a hearing, but two days later, weeks before the hearing, the district court
granted summary judgment.
Polk appeals, raising several arguments. Chiefly, he contends the court
erred in granting summary judgment and failed to consider the facts in his favor.
In addition, he claims the court erred in restricting the discovery he could obtain
from the assistant state attorneys who prosecuted him, in not permitting him further
discovery before ruling on the defendants’ motion, and in rendering summary
judgment while his motion to compel was still pending.
II.
We review a grant of summary judgment de novo, construing the facts in the
light most favorable to the non-moving party. Dawkins v. Fulton Cnty. Gov’t, 733
F.3d 1084, 1088 (11th Cir. 2013). “All reasonable inferences arising from the
undisputed facts should be made in favor of the nonmovant, but an inference based
on speculation and conjecture is not reasonable.” Avenue CLO Fund, Ltd. v. Bank
of Am., NA, 723 F.3d 1287, 1294 (11th Cir. 2013) (internal quotation marks
omitted).2 We may affirm a district court’s decision rendering summary judgment
“on any ground supported by the record, regardless of whether that ground was
relied upon or even considered by the district court.” Kernel Records Oy v.
2
Because we review the judgment de novo based upon our own construction of the evidence, we
need not specifically address Polk’s claim the district court failed to treat the facts in the light
most favorable to him.
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Mosley, 694 F.3d 1294, 1309 (11th Cir. 2012), cert. denied, 133 S. Ct. 1810
(2013).
In a suit for damages under 42 U.S.C. § 1983 for a constitutional violation,
government officials are immune for actions taken in their discretionary capacity
unless the actions violated law that was clearly established at the time. Wilkerson
v. Seymour, 736 F.3d 974, 977 (11th Cir. 2013). To be entitled to qualified
immunity from a § 1983 malicious-prosecution claim, an officer need only have
arguable probable cause. Grider v. City of Auburn, Ala., 618 F.3d 1240, 1257 &
n.25 (11th Cir. 2010). Under that standard, the defendant officers will be immune
provided “reasonable officers in the same circumstances and possessing the same
knowledge as the Defendants could have believed that probable cause existed . . .
.” Id. at 1257 (internal quotation marks omitted).
We review the denial of a motion under Rule 56(d) for leave to conduct
further discovery only for an abuse of discretion. World Holdings, LLC v. Fed.
Republic of Germany, 701 F.3d 641, 649 (11th Cir. 2012), cert. denied, 134 S. Ct.
203 (2013). Likewise, a trial court has “wide discretion in setting the limits of
discovery” through protective orders. Liese v. Indian River Cnty. Hosp. Dist., 701
F.3d 334, 354 (11th Cir. 2012) (internal quotation marks omitted). Moreover, even
if we conclude a court abused its discretion in limiting discovery, we will not
reverse unless it is shown the error “resulted in substantial harm to the appellant’s
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case.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1307
(11th Cir. 2011) (internal quotation marks omitted).
III.
We begin by defining what claims actually are at issue in this appeal. Polk,
in his initial brief, asserts that “[t]his case concerns a 42 U.S.C. § 1983 civil rights
false arrest and imprisonment and malicious prosecution . . . .” But Polk did not
allege § 1983 false-arrest or false-imprisonment claims in his complaint, and he
has never moved to amend the complaint to assert such claims. They are therefore
not properly before us. See Glenn v. U.S. Postal Serv., 939 F.2d 1516, 1523 (11th
Cir. 1991) (stating a plaintiff “cannot assert for the first time on appeal a new claim
not presented to the district court”). Polk did allege a § 1983 claim for deliberate
indifference but does not make even passing reference to that claim in his brief —
the words “deliberate indifference” never appear at all. Accordingly, we conclude
Polk has abandoned that claim. See Hamilton v. Southland Christian Sch., Inc.,
680 F.3d 1316, 1318-19 (11th Cir. 2012). Likewise, Polk offers no argument that
the district court erred in declining to exercise supplemental jurisdiction over his
state-law claims if the court correctly rendered summary judgment against his §
1983 claims. Thus, because we affirm the summary judgment as to Polk’s federal
claims, we perforce affirm the court’s decision to dismiss his state-law claims.
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Turning then to Polk’s substantive § 1983 claims, we have little difficulty
concluding the court correctly rendered summary judgment on the basis that
Sheriff McKeithen and Officers Piercy and Godwin were entitled to qualified
immunity. As to the malicious-prosecution claim, we cannot say Polk has shown
“no reasonable officer could have found probable cause under the totality of the
circumstances” to believe a crime had been committed based on an eleven-year-old
girl’s videotaped statement describing in vivid and excruciating detail precisely
how she was raped and by whom. Kingsland v. City of Miami, 382 F.3d 1220,
1232 (11th Cir. 2004); see also Rankin v. Evans, 133 F.3d 1425, 1440 (11th Cir.
1998) (concluding that victim’s “statements supported probable cause”). That is so
even though a physical exam failed to find physical evidence of the rape, one DNA
test did not corroborate the girl’s story, and she did not reiterate each of the many
details every single time she told it.
Polk’s claim that the officers never turned over the rape examination report
and DNA test does not alter our conclusion, even if we assume the single passing
mention of “due process” in Polk’s initial brief as part of a quotation from a district
court case to have adequately preserved that claim. Although law enforcement
officers have a clearly established duty not to “conceal exculpatory or
impeachment evidence” from the prosecution in a criminal case, they have no
clearly established duty to do anything with evidence “[i]f they have reason to
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believe the prosecutor already has” it. McMillian v. Johnson, 88 F.3d 1554, 1567,
1569 (11th Cir. 1996) (emphasis added). Nothing in the record contradicts the
defendants’ testimony that they reasonably believed the evidence custodian would
turn over any report from the state’s crime laboratory directly to prosecutors or
suggests they interfered with this process. Certainly, no evidence suggests they
“intentionally withheld . . . exculpatory [or] impeachment evidence from the . . .
prosecutor.” Id. at 1566. Even were we to disregard that testimony, at most
Officers Piercy and Godwin and Sheriff McKeithen did not follow up on whether
evidence they placed in the case file and the results of the requested testing reached
prosecutors. Law enforcement officers, however, have no clearly established
constitutional duty to do so. See Porter v White, 483 F.3d 1294, 1308 (11th Cir.
2007) (recognizing no viable cause of action for “mere negligence or inadvertence
on the part of a law enforcement official in failing to turn over [exculpatory or
impeachment] evidence to the prosecution”). They only have a clearly established
duty not to have prevented prosecutors from having access to it. See id. at 1304
n.5 (stating that, “if the officials intentionally withheld what they knew to be
[exculpatory] material, then they violated clearly established law,” but recognizing
it not clearly established during the relevant time that “less-than-intentional
conduct would suffice”).
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Polk argues on appeal that his official-capacity claim may stand even if we
decide the individual officer defendants are entitled to qualified immunity.
Although that may be a correct statement of the law, there is no such claim before
us because Polk never pleaded any of the federal claims he has preserved on appeal
against any official-capacity defendant. In the operative complaint, the captions
for the § 1983 malicious prosecution, due process, and conspiracy counts expressly
name only Sherriff McKeithen, and Officers Piercy and Godwin, and in those
counts Polk pleaded no facts regarding a policy or practice that would serve as a
basis for official-capacity liability. See Cooper v. Dillon, 403 F.3d 1208, 1221
(11th Cir. 2005) (“When suing local officials in their official capacities under
§ 1983, the plaintiff has the burden to show that a deprivation of constitutional
rights occurred as a result of an official government policy or custom.”). The only
federal claim that Polk pleaded against the current Sheriff in his official capacity
was one for deliberate indifference, a claim he has, as we previously noted,
abandoned.
Having concluded they are entitled to qualified immunity for their actions,
we must necessarily affirm summary judgment as to Polk’s conspiracy claim
against Sheriff McKeithen and Officers Piercy and Godwin (the only defendants
against whom the claim is pleaded). A plaintiff “cannot state a valid conspiracy
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claim by alleging the Defendants conspired to do things they already are immune
from doing directly.” Rehberg v. Paulk, 611 F.3d 828, 854 (11th Cir. 2010).
Finally, the district court did not abuse its broad discretion by denying
Polk’s motion for further discovery, restricting Polk’s discovery against the state
attorneys who prosecuted him, and granting judgment before ruling on his motion
to compel. See Liese, 701 F.3d 334 at 354. There is no “blanket prohibition on
the granting of summary judgment motions before discovery” is fully complete.
Reflectone, Inc. v. Farrand Optical Co., 862 F.2d 841, 843 (11th Cir. 1989). And
the only evidence Polk claims may have precluded summary judgment is his
speculation that deposing his prosecutors might have uncovered that they agreed
with investigators to withhold certain pieces of evidence from him. Because the
officers had enough evidence even with the purportedly withheld reports for
arguable probable cause and did nothing to affirmatively prevent prosecutors from
accessing that evidence, nothing that may have been uncovered in the deposition
could have changed the outcome in this case. Accordingly, any error in unfairly
restricting Polk’s access to additional discovery before rendering summary
judgment was harmless. See Josendis, 662 F.3d at 1307.
IV.
For the foregoing reasons, we find any error in the denial of Polk’s motion
for further discovery and imposition of limits on Polk’s discovery against the state
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attorneys who prosecuted him was harmless, and we affirm the district court’s
entry of summary judgment against Polk’s federal claims and dismissal of his state
claims.
AFFIRMED.
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