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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13610
Non-Argument Calendar
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D.C. Docket No. 0:16-cv-62770-WPD
KENNETH WILK,
Plaintiff-Appellant,
versus
ST. LUCIE COUNTY FLA. SHERIFF OFFICE,
BROWARD COUNTY FLA. SHERIFF OFFICE,
NEIL SPECTOR,
KEVIN BUTLER,
ROY VRCHOTA, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 2, 2018)
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Before WILLIAM PRYOR, MARTIN and JILL PRYOR, Circuit Judges.
PER CURIAM:
Kenneth Wilk, a federal prisoner, appeals pro se the sua sponte dismissal of
his amended complaint that his civil rights were violated in the events that led to
his conviction for seven crimes, including the murder of Deputy Sheriff Todd Fatta
of the Broward County Sheriff’s Office, and a civil judgment against him for
Fatta’s wrongful death. See 42 U.S.C. § 1983. We affirm.
I. BACKGROUND
In 2007, a federal jury convicted Wilk of seven crimes, including the murder
of Deputy Fatta and the attempted murder of Sergeant Angelo Cedeno as they
aided federal agents executing a warrant to search Wilk’s home. See United States
v. Wilk, 572 F.3d 1229, 1232–34 (11th Cir. 2009). In 2001, while Wilk’s domestic
partner, Kelly Jones, was awaiting trial for crimes involving child pornography,
Wilk threatened officers and posted messages online that he “hunt[ed] cops.” In
2004, agents obtained a warrant to search Wilk’s home after an undercover agent
received child pornography from Jones and intercepted an instruction she gave
Wilk to delete incriminating emails. Wilk shot Fatta and Cedeno as they entered
his residence to execute the warrant. Id. The district court sentenced Wilk to
imprisonment for life, fined him $25,000, and ordered the forfeiture of his interest
in his house. Later, the district court amended its judgment and ordered Wilk to
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pay more than $4 million in restitution, part of which was payable to Fatta’s
family, after the family settled their civil action against Wilk, the Broward County
Sheriff’s Office, and other persons for wrongful death. Wilk appealed his
convictions and we affirmed. Id. at 1234–39.
In 2010, Wilk moved for relief from his convictions and sentence. 28 U.S.C.
§ 2255. Wilk attached to his motion a newspaper article describing a reprimand
Deputy Sheriff Neil Spector of the St. Lucie Sheriff’s Office received for his
improper participation in plea negotiations with and his role as a paid defense
witness for Mark Cohen. The district court denied Wilk’s motion, and we denied
Wilk’s application for a certificate of appealability.
In 2016, Wilk filed his civil action against Spector, the sheriff’s offices of
St. Lucie and Broward Counties, two former sheriffs of Broward County, and
several Broward County deputies. See 42 U.S.C. § 1983. Wilk complained about
Spector committing extortion, fabricating evidence, and causing Wilk to loss his
liberty and property in violation of his rights to due process and equal protection
under the Fifth and Fourteenth Amendments. Wilk alleged that, after Jones was
arrested in 2001, Wilk paid Spector $500 to release Jones’s car and rejected
Spector’s offer to dismiss Jones’s pornography charges for $10,000. Wilk also
alleged that he had a plan to expose Spector, but Spector discovered the plan and
fabricated evidence to obtain warrants to arrest Wilk and search his home.
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According to Wilk, in 2004, Spector led a group of unwitting deputies to execute
the warrants and planted evidence in Wilk’s home that was used to convict him.
Wilk complained about a conspiracy by the St. Lucie’s Sheriff’s Office and
its officers to withhold exculpatory evidence. Wilk alleged that, after the public
disclosure of Spector’s corruption, the sheriff and administrators in St. Lucie
County conspired to limit their liability by withholding reports regarding Spector’s
extortion of citizens and criminal defendants. Wilk requested that the district court
order the Sheriff’s Office to produce Spector’s personnel file, including
disciplinary reports and the findings from internal affairs investigations.
Wilk also complained that the Broward County Sheriff’s Office, its former
sheriffs, and its administrators violated office protocol for serving a high risk
search warrant; that they conspired to defraud Wilk and his insurance company and
to deny him due process and equal protection by blaming him for Fatta’s death;
and that they unlawfully seized evidence from Wilk’s home. Wilk alleged that the
Broward County Sheriff’s Office customarily used trained tactical teams to execute
risky warrants, but the office sent to Wilk’s home a group of deputies who were
inadequately equipped and trained and were under the influence of drugs. Wilk
also alleged that the Sheriff’s Office, its former sheriffs, and its deputies concealed
internal reports and gave false testimony during the Fattas’ civil trial about office
protocol for serving warrants, which resulted in a judgment against Wilk that was
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paid by his homeowners insurance provider. Wilk requested copies of reports
describing the protocol the Broward County Sheriff’s Office followed to execute
warrants.
The district court adopted the recommendations of a magistrate judge to
dismiss sua sponte Wilk’s amended complaint for failure to state a claim, 28
U.S.C. § 1915(e)(2)(B), and to decline to exercise supplemental jurisdiction over
Wilk’s claims under Florida law. The district court ruled that the two sheriff’s
offices were not legal entities subject to suit; that their officers were immune from
suit in their official capacities; and that Wilk had an adequate remedy under
Florida law to sue the State for the actions of Broward County officials that caused
Wilk to lose ownership interest in his home and to incur the judgment that his
insurer paid. With respect to Wilk’s claims against the officials of Broward
County, the district court ruled that Wilk’s allegations were insufficient to state a
plausible claim of supervisory liability against its former sheriffs; that Wilk’s
complaint contained no facts that the officials agreed to violate Wilk’s right to due
process; and that Wilk failed to identify either a protected class to which he
belonged or a similarly situated individual who had been treated more favorably.
As to Wilk’s claims against officials of St. Lucie County, the district court ruled
that Wilk’s claims about his actual innocence in shooting Fatta, about officials
withholding exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83
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(1963), and about his requests to obtain personnel and disciplinary files to establish
his innocence necessarily implicated his convictions and were barred under Heck.
And because “none of [Wilk’s] federal claims . . . survived screening,” the district
court declined to exercise supplementary jurisdiction over Wilk’s claims of fraud
and conspiracy in violation of state law.
II. STANDARDS OF REVIEW
We apply two standards of review in this appeal. We review de novo the sua
sponte dismissal of a complaint for failure to state a claim. Boxer X v. Harris, 437
F.3d 1107, 1110 (11th Cir. 2006). Although we read pro se filings liberally, Alba v.
Montford, 517 F.3d 1249, 1252 (11th Cir. 2008), we will not “rewrite an otherwise
deficient pleading in order to sustain an action,” Campbell v. Air Jam. Ltd., 760
F.3d 1165, 1168–69 (11th Cir. 2014) (quoting GJR Invs., Inc. v. Cty. of Escambia,
Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)). We review for abuse of discretion the
failure of a magistrate judge to sua sponte recuse, see Murray v. Scott, 253 F.3d
1308, 1310 (11th Cir. 2001), and the refusal of a request for discovery, see
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir.
2011). We also review for abuse of discretion a decision to decline to exercise
supplemental jurisdiction over claims under state law. Utopia Provider Sys., Inc. v.
Pro-Med Clinical Sys., LLC, 596 F.3d 1313, 1328 (11th Cir. 2010).
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III. DISCUSSION
Wilk challenges the dismissal of his amended complaint. Wilk argues that he
could sue the sheriff’s offices; that the officials in St. Lucie and Broward Counties
are liable in their official capacities for violating state and county policy and for
their manipulation of evidence; that he alleged facts sufficient to establish civil
conspiracies by the officers in St. Lucie County and by the officers in Broward
County; and that his claims of conspiracy are not barred under Heck. Wilk also
argues that the magistrate judge should have recused from his case; that he was
entitled to discovery of reports about Spector; and that the district court should
have considered his claims that the officers violated state law. These arguments
fail. We address each in turn.
A. The Sheriff’s Offices of St. Lucie and Broward Counties Are Not Subject to Suit.
The district court correctly dismissed Wilk’s claims against the sheriff’s
offices. “Sheriff's departments and police departments are not usually considered
legal entities subject to suit, but capacity to sue or be sued shall be determined by
the law of the state in which the district court is held.” Dean v. Barber, 951 F.2d
1210, 1214 (11th Cir. 1992) (internal citations omitted); Fed. R. Civ. P. 17(b).
Under Florida law, sheriff’s offices lack the legal capacity to be sued. See Fla. City
Police Dep’t v. Corcoran, 661 So. 2d 409, 410 (Fla. Dist. Ct. App. 1995).
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B. Wilk Failed to Allege that St. Lucie or Broward Counties Had Official Policies
or Customs that Violated His Federal Rights.
Section 1983 provides a remedy for deprivations of federal rights by a
person acting under color of state law. Almand v. DeKalk Cty., 103 F.3d 1510,
1513 (11th Cir. 1997). Unlike the sheriff’s offices, Broward County is a “person”
subject to suit under section 1983. See Quinn v. Monroe Cty., 330 F.3d 1320, 1325
(11th Cir. 2003). The action against the former sheriffs and deputies of Broward
County in their official capacities are “the same as a suit against the entity of which
the officer[s] . . . [are] agent[s].” See McMillan v. Monroe Cty., Ala., 520 U.S. 781,
785 n.2 (11th Cir. 1997) (internal quotations omitted and alterations adopted); see
also Lucas v. O’Loughlin, 831 F.2d 232, 235 (11th Cir. 1987) (holding county
liable for an official capacity suit against a sheriff in Florida).
To establish liability against a local government under section 1983, a
plaintiff must prove a violation of his federal rights; that a custom or policy of the
local government caused the violation of his rights; and that the violation injured
him. McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). A policy is a
decision that is officially adopted by the county or created by a central official,
whereas “[a] custom is a practice that is so settled and permanent that it takes on the
force of law.” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.
1997). “Normally[,] random acts or isolated incidents are insufficient to establish a
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custom or policy.” Depew v. City of St. Marys, Ga., 787 F.2d 1496, 1499 (11th
Cir. 1986).
For an officer’s policy decisions to be attributable to the local government,
the official must have final policymaking authority. Campbell v. Rainbow City,
434 F.3d 1306, 1312 (11th Cir. 2006). Whether an official is a “final policymaker”
is dependent on state law. McMillian, 520 U.S. at 785–86. We have ruled that
police chiefs in Florida enjoy final policymaking authority for law enforcement
matters in their municipalities. Cooper v. Dillon, 403 F.3d 1208, 1222 (11th Cir.
2005); see Fla. Const. Art. VIII, § 1(d) (labeling sheriffs “county officers”); Fla.
Const. Art. VIII, § 2(b) (“[m]unicipalities shall have governmental, corporate and
proprietary powers to enable them to conduct municipal government”).
The district court correctly dismissed Wilk’s claims against the former
sheriffs and the deputies of Broward County and the officers of St. Lucie County
because Wilk failed to allege that the officers’ violations of his rights were
attributable to any official custom or policy. Wilk’s allegations that the officers
violated his rights were based on “a single act of . . . misconduct.” See McDowell,
392 F.3d at 1293 (quoting Anderson v. City of Atlanta, 778 F.2d 678, 685 (11th
Cir. 1985)). Wilk identified no policy in Broward County permitting, or another
incident involving, the fabrication of evidence, the concealment of exonerating
evidence, or the concealment of a violation of an office policy or procedure that
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resulted in a civilian instead of the sheriff’s office being blamed for the death of an
officer. See Depew, 787 F.2d at 1499. Wilk also alleged no policy or practice by
the Sheriff’s Office of St. Lucie County of withholding evidence to limit liability
for its officers’ misdeeds. Although Wilk alleged that Spector’s misconduct was
widespread, he was not a final policymaker for the Sheriff’s Office of St. Lucie
County and could not be liable in his official capacity as an officer of the County.
See Campbell, 434 F.3d at 1312.
C. Wilk Failed To State a Claim that the Officers in Broward County or in St.
Lucie County Conspired To Violate his Constitutional Rights.
To establish a claim of conspiracy under section 1983, “a plaintiff must
show that the parties reached an understanding to deny the plaintiff his or her
rights and prove an actionable wrong to support the conspiracy.” Bailey v. Bd. of
Cty. Comm’rs of Alachua Cty., Fla., 956 F.2d 1112, 1122 (11th Cir. 1992) (internal
quotation marks and citation omitted) (alteration adopted). The complaint must
inform the defendants “of the nature of the conspiracy which is alleged. It is not
enough to simply aver in the complaint that a conspiracy existed.” Fullman v.
Graddick, 739 F.2d 553, 557 (11th Cir. 1984).
The Due Process Clause of the Fourteenth Amendment provides that no state
shall “deprive any person of life, liberty, or property, without due process of law.”
U.S. Const. Amend. XIV, § 1. A violation of procedural due process occurs where
the state fails to provide due process in the deprivation of a protected liberty
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interest and “refuses to provide a process sufficient to remedy the procedural
deprivation.” McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (en banc). A
claim “alleging a denial of procedural due process requires proof of three elements:
(1) a deprivation of a constitutionally-protected liberty or property interest;
(2) state action; and (3) constitutionally-inadequate process.” Grayden v. Rhodes,
345 F.3d 1225, 1232 (11th Cir. 2003). Ordinarily, all the process that is required
“in a civil case is proper notice and service of process and a court of competent
jurisdiction.” Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1027 (5th Cir. Unit B 1982).
Wilk failed to state a claim that the former sheriffs and officers of Broward
County deprived Wilk of due process as part of a conspiracy to shield the sheriff’s
office from liability. Wilk alleged that the officers’ actions resulted in the entry of
a civil judgment against him, but he did not allege that he was denied notice of or
the opportunity to present evidence and be heard before entry of the judgment. The
district court did not err in dismissing Wilk’s claim of conspiracy on the ground
that he “failed to state a facially sufficient claim of a constitutional violation” and
necessarily was “unable to support a conspiracy claim” against the officers of
Broward County.
Wilk also failed to state a claim that the officers of St. Lucie County
conspired to violate his constitutional rights. The district court ruled that Wilk’s
claim that the officers’ concerted refusal to produce Spector’s personnel and
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disciplinary files was barred by Heck, but we need not address the application of
Heck because we can affirm on the basis that Wilk failed to satisfy the threshold
requirement to establish that a conspiracy existed. See Thomas v. Cooper Lighting,
Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (“We may affirm the district court’s
judgment on any ground that appears in the record, whether or not that ground was
relied upon or even considered by the court below.”). “In civil rights and
conspiracy actions, conclusory, vague, and general allegations of conspiracy may
justify dismissal of a complaint.” Kearson v. S. Bell Tel. & Tel. Co., 763 F.2d 405,
407 (11th Cir. 1985). Wilk alleged no facts that the officers “reached an[y]
understanding,” see Bailey, 956 F.2d at 1122, much less an understanding to
withhold exculpatory evidence. The district court correctly dismissed Wilk’s claim
of a civil conspiracy by the officers of St. Lucie County.
D. The Magistrate Judge Was Not Required to Sua Sponte Recuse From Wilk’s
Civil Action.
The magistrate judge did not abuse his discretion by failing sua sponte to
recuse from Wilk’s civil action. Recusal is necessary only when “an objective,
fully informed lay observer would entertain significant doubt about the judge’s
impartiality.” In re Walker, 532 F.3d 1304, 1310 (11th Cir. 2008) (quoting Christo
v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000)). A magistrate judge should
recuse when his conduct reflects “such pervasive bias and prejudice that it
constitutes bias against a party,” but “rulings adverse to a party . . . [do not]
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constitute pervasive bias.” Hamm v. Members of Bd. of Regents of State of Fla.,
708 F.2d 647, 651 (11th Cir. 1983). Wilk argues that the magistrate judge’s
participation in Wilk’s prior criminal proceedings created an appearance of
partiality, see 28 U.S.C. § 455(a), but neither the magistrate judge’s adverse
rulings, nor his familiarity with Wilk’s criminal case mandated recusal.
E. Wilk Was Not Entitled to Obtain Discovery from Officials of St. Lucie County.
Wilk argues that the district court prematurely dismissed his complaint
before allowing him to obtain discovery about Spector’s misconduct, but we
disagree. A district court is required to screen any “complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity” before allowing service of process and allowing
discovery. 28 U.S.C. § 1915A(a). Because the district court determined that Wilk’s
amended complaint failed to state a claim for relief, Wilk was not entitled to
conduct discovery.
F. The District Court Did Not Abuse Its Discretion When It Declined to Exercise
Supplemental Jurisdiction Over Wilk’s State Law Claims.
The district court did not abuse its discretion when it declined to exercise
supplemental jurisdiction over Wilk’s remaining claims under state law. A district
court may decline to exercise supplemental jurisdiction over a state claim after
dismissing all federal claims over which it has original jurisdiction. Id.
§ 1367(c)(3). We “encourage[ ] district courts to dismiss any remaining state
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claims when, as here, the federal claims have been dismissed prior to trial.” Raney
v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir. 2004).
IV. CONCLUSION
We AFFIRM the dismissal of Wilk’s amended complaint.
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