[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-14617 APR 19, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-80814-CV-KLR
ROBERT HOLT JR.,
Plaintiff-Appellant,
versus
CHARLIE CRIST,
Governor, State of Florida,
ATTORNEY GENERAL OF FLORIDA,
Bill McCollum,
BARRY E. KRISCHER,
State or County Attorney, Fifteenth Judicial
Circuit, Palm Beach County,
LUCY BROWN, Judge,
SCOTT I. SUSKAUER, et. al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 19, 2007)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Robert Holt, Jr., proceeding pro se, appeals the dismissal of his 42 U.S.C.
§ 1983 complaint for failure to state a claim under Rule12(b)(6) of the Federal
Rules of Civil Procedure and the dismissal of his pendent claims for writ of
mandamus, writ of prohibition, and writ of quo warranto. Liberally construing
Holt’s appellate brief, see Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998), Holt argues that the district court erred in dismissing his
complaint and that the district court failed to comply with its obligations under 28
U.S.C. § 636(b)(1), which required the district court to “make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1) (emphasis
added). For the reasons set forth more fully below, we affirm.
As an initial matter, the district court’s statement that it had reviewed the
magistrate judge’s report and recommendation and Holt’s objections is sufficient
to satisfy us that it engaged in the requisite de novo review. “The de novo review
requirement is essential to the constitutionality of section 636.” Jeffrey S. v. State
Bd. of Educ. of State of Ga., 896 F.2d 507, 512 (11th Cir. 1990). “[A]n appellate
court must be satisfied that a district judge has exercised his non-delegable
2
authority by considering the actual testimony, and not merely by reviewing the
magistrate’s report and recommendations.” Stokes v. Singletary, 952 F.2d 1567,
1576 (11th Cir. 1992) (citation and quotation marks omitted) (alteration in
original).1
In this case, this very experienced district judge stated that he had reviewed
the report and recommendation and Holt’s objections. “We assume that the district
court performed its review function properly in the absence of evidence to the
contrary.” Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997); see also
Burrell v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1395 (11th Cir. 1997)
(“‘Trial judges are presumed to know the law and to apply it in making their
decisions.’” ) (citation omitted). Applying such an assumption, the Fifth Circuit
rejected the contention that review was not de novo when the district court’s order
stated that “‘[f]or the reasons set forth in the Magistrate’s Report to which an
objection was filed; IT IS ORDERED that . . . the defendant’s motion for summary
judgment be granted.’” Longmire v. Guste, 921 F.2d 620, 623 (5th Cir. 1991)
(alteration and omission in original). We likewise cannot conclude that the district
1
Although there was no testimony presented in this case, de novo review of a
recommendation to dismiss for failure to state a claim must still encompass an independent
review of the record. See LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988) (holding that
consideration of a challenged factual issue must be independent and based upon the record
before the court).
3
court’s statement indicates a failure to engage in the requisite de novo review.2
Turning to the merits of the dismissal of Holt’s complaint, we discern no
error. “We review de novo a district court’s dismissal under Rule 12(b)(6) for
failure to state a claim, accepting the allegations in the complaint as true and
construing them in the light most favorable to the plaintiff.” Behrens v. Regier,
422 F.3d 1255, 1259 (11th Cir. 2005) (citation and quotation marks omitted).
The district court may only grant a Rule 12(b)(6) motion to dismiss
where it is demonstrated beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief.
Although the threshold is exceedingly low for a complaint to survive a
motion to dismiss for failure to state a claim, a court may nonetheless
dismiss a complaint on a dispositive issue of law.
Day v. Taylor, 400 F.3d 1272, 1275 (11th Cir. 2005) (citations and quotation
marks omitted). However, “[t]o survive a motion to dismiss, plaintiffs must do
more than merely state legal conclusions; they are required to allege some specific
factual bases for those conclusions or face dismissal of their claims.” Jackson v.
BellSouth Telecomms., 372 F.3d 1250, 1263 (11th Cir. 2004). “[C]onclusory
allegations, unwarranted deductions of facts or legal conclusions masquerading as
facts will not prevent dismissal.” Id. at 1262-63 (citation and quotation marks
2
This case involves the granting of a motion to dismiss. Consequently, the district judge
was not reviewing testimony nor exhibits but reviewing de novo whether the allegations of the
complaint stated a claim for relief under the law. Of course, it would be helpful if orders of this
sort stated specifically that “a de novo review” was conducted.
4
omitted) (alteration in original). We review a district court’s refusal to exercise
supplemental jurisdiction over state law claims for an abuse of discretion. See
Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th Cir. 2004).
Holt’s complaint alleges violations of his Constitutional rights based on a
state criminal prosecution brought against him. He sought monetary damages,
injunctive and declaratory relief, and, invoking the pendent jurisdiction of the
district court, the issuance of a writ of mandamus, writ of prohibition, and writ of
quo warranto “to protect the interests of the people as a whole.”
“In order to prevail on a civil rights action under § 1983, a plaintiff must
show that he or she was deprived of a federal right by a person acting under color
of state law.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).
“[T]he under-color-of-state-law element of § 1983 excludes from its reach merely
private conduct, no matter how discriminatory or wrongful.” Focus on the Family
v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1277 (11th Cir. 2003) (citation
and quotation marks omitted). “[A] public defender does not act under color of
state law when performing a lawyer’s traditional functions as counsel to a
defendant in a criminal proceeding.” Polk County v. Dodson, 454 U.S. 312, 325,
102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981). However, “private defendants can be
held liable in a § 1983 action if they act in concert with the state officials in
5
depriving a plaintiff of constitutional rights.” Bendiburg v. Dempsey, 909 F.2d
463, 468 (11th Cir. 1990).
Holt’s malpractice and ineffective assistance of counsel claims against
defense attorney Suskauer are based on allegations that Suskauer failed to file
various motions as Holt’s counsel during the state criminal proceedings. Thus,
these claims cannot proceed under § 1983 because Suskauer was not acting under
color of state law. Polk County, 454 U.S. at 325, 102 S.Ct. at 453. Holt’s
complaint only contains a general, conclusory allegation of a conspiracy and,
therefore, the conspiracy claim was properly dismissed. See Jackson, 372 F.3d at
1262-63 (“[C]onclusory allegations, unwarranted deductions of facts or legal
conclusions masquerading as facts will not prevent dismissal.”) (citation and
quotation marks omitted) (alteration in original).
Furthermore, the district court did not err in finding that Judge Brown and
prosecutors Krischer, Faro, and Viscome were immune from damages.
Judges are entitled to absolute judicial immunity from damages for
those acts taken while they are acting in their judicial capacity unless
they acted in the clear absence of all jurisdiction. This immunity
applies even when the judge’s acts are in error, malicious, or were in
excess of his or her jurisdiction.
Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005) (citations and quotation
marks omitted). As all of the allegations Holt made against Judge Brown relate to
6
orders entered and actions taken (or not taken) in a case pending before her, the
district court did not err in finding that Judge Brown was entitled to judicial
immunity.
Similarly, all of Holt’s allegations against prosecutors Krischer, Faro, and
Viscome only relate to actions taken in their prosecutorial role. However, “in
initiating a prosecution and in presenting the State’s case, the prosecutor is immune
from a civil suit for damages under § 1983.” Imbler v. Pachtman, 424 U.S. 409,
431, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). Immunity extends to charging a
defendant without probable cause and to the knowing proffer of perjured testimony
and fabricated exhibits at trial. Rowe v. City of Fort Lauderdale, 279 F.3d 1271,
1279-81 (11th Cir. 2002). A prosecutor only can be liable for conspiracy “if his
agreement to join the conspiracy or conduct knowingly done in furtherance of it
occurred while he was not in his prosecutorial role. [A prosecutor] cannot . . . be
held liable for conspiring to violate [a person’s] rights by prosecuting him, because
he is absolutely immune from liability for” that prosecution. Id. at 1282.
Accordingly, the district court did not err in finding that Krischer, Faro, and
Viscome were entitled to prosecutorial immunity.
The district court also did not err in dismissing Holt’s claims for declaratory
and injunctive relief. All of Holt’s factual allegations related to past conduct, he
7
made no allegation of a continuing injury, and the possibility that he will be subject
to criminal prosecution in the future is insufficient to state a claim for declaratory
relief. See Emory v. Peeler, 756 F.2d 1547, 1552 (11th Cir. 1985) (“The remote
possibility that a future injury may happen is not sufficient to satisfy the ‘actual
controversy’ requirement for declaratory judgments.”); see also Malowney v. Fed.
Collection Deposit Group, 193 F.3d 1342, 1348 (11th Cir. 1999) (“Injury in the
past, however, does not support a finding of an Article III case or controversy
when the only relief sought is a declaratory judgment.”). In order to warrant
injunctive relief, the party must demonstrate a substantial likelihood of irreparable
injury, which is “neither remote nor speculative, but actual and imminent.” Siegel
v. LePore, 234 F.3d 1163, 1176-77 (11th Cir. 2000) (en banc) (citation and
quotation marks omitted). Holt, however, failed to allege an actual and imminent
threat of future injury.
“The decision to exercise supplemental jurisdiction over pendant state
claims rests within the discretion of the district court.” Raney, 370 F.3d at 1088-
89. “We have encouraged district courts to dismiss any remaining state claims
when . . . the federal claims have been dismissed prior to trial.” Id. at 1089.
Accordingly, the district court did not abuse its discretion in dismissing Holt’s
pendant claims for a writ of mandamus, writ of prohibition, and writ of quo
8
warranto.
In light of the foregoing, we hold that the district court fulfilled its obligation
to conduct de novo review pursuant to 28 U.S.C. § 636(b)(1) and that its dismissal
of Holt’s complaint was not erroneous.
AFFIRMED.
9