Thomas George Hyland v. Danny L. Kolhage ( 2005 )


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               IN THE UNITED STATES COURT OF APPEALS
    
                       FOR THE ELEVENTH CIRCUIT
                         ________________________                 FILED
                                                         U.S. COURT OF APPEALS
                                No. 05-11476               ELEVENTH CIRCUIT
                                                           NOVEMBER 29, 2005
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                          ________________________
                                                                 CLERK
    
                       D. C. Docket No. 04-10102-CV-SH
    
    THOMAS GEORGE HYLAND,
    
    
                                                     Plaintiff-Appellant,
    
                                    versus
    
    DANNY L. KOLHAGE,
    RUTH THURSTON,
    
    
                                                     Defendants-Appellees.
    
    
                          ________________________
    
                  Appeal from the United States District Court
                      for the Southern District of Florida
                         _________________________
    
                               (November 29, 2005)
    
    Before BLACK, MARCUS and WILSON, Circuit Judges.
    
    PER CURIAM:
          Florida prisoner Thomas G. Hyland, filing pro se, appeals the district court’s
    
    dismissal of his 42 U.S.C. § 1983 action against Monroe County Clerk of Court
    
    Danny L. Kolhage and Deputy Clerk Ruth Thurston. The district court found the
    
    complaint failed to state a claim, and was further barred by Heck v. Humphrey, 
    114 S. Ct. 2364
     (1994). We affirm the district court’s dismissal of Hyland’s action
    
    against Kolhage, but vacate and remand the dismissal of Hyland’s action against
    
    Thurston.
    
                                    I. BACKGROUND
    
          Hyland’s complaint alleged that on February 3, 2004, a state judge sentenced
    
    him to two years’ probation for a felony petit theft. Thurston took the court
    
    minutes at sentencing. Hyland claimed the original court minutes, which he
    
    attached to the complaint, indicated the sentencing judge found Hyland should be
    
    held in custody until there was a bed available in the “Keys to Recovery Program.”
    
    Hyland alleged that in April 2004, an altered set of minutes was drafted, in which
    
    the phrase “complete Keys to Recovery” was written in the “other” notation
    
    section as a special condition of probation. Hyland claimed Thurston illegally
    
    altered the minutes, which resulted in a condition of probation being entered when
    
    it was not so ordered by the sentencing judge. He argued Thurston “negligently”
    
    added the additional condition, but he also claimed it was not “just an oversight or
    
    
    
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    a failure to maintain records, but deliberate, affirmative, operational action, void of
    
    judgment or discretion . . . by private agenda.” Hyland claimed Thurston’s actions
    
    amounted to “malfeasance of bad faith.” He argued because of Thurston’s actions,
    
    he was forced to spend time in “illegal restraint,” and the Department of
    
    Corrections used the altered court minutes to incarcerate him for failure to
    
    complete the treatment program. In his handwritten objections to the magistrate’s
    
    Report & Recommendation (R&R), Hyland attached the court minutes showing the
    
    state court granted his motion to dismiss a violation of condition nine, the “Keys to
    
    Recovery” condition.
    
           On appeal, Hyland argues Kolhage (1) was liable for Thurston’s actions
    
    because Thurston acted outside the legal scope of her employment, and (2) was
    
    deliberately indifferent to his deputy clerk’s unlawful alteration of court minutes
    
    even after Hyland had notified him of the alteration.1 Hyland also claims Thurston
    
    should not enjoy qualified immunity for her deliberate acts, the unlawful alteration
    
    of court minutes.
    
    
    
    
           1
              We have repeatedly held we will not consider an issue raised for the first time on
    appeal. Access Now, Inc. v. Southwest Airlines Co., 
    385 F.3d 1324
    , 1331 (11th Cir. 2004). Thus,
    we will not consider Hyland’s argument not raised before the district court—that Kolhage acted
    with deliberate indifference. Additionally, we will not consider documents that Hyland
    submitted for the first time on appeal and did not present to the district court—the Probation
    Officer’s affidavit and Hyland’s motion to dismiss the petition regarding probation condition
    nine.
    
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                                     II. DISCUSSION
    
          “A district court's sua sponte dismissal for failure to state a claim under [28
    
    U.S.C.] § 1915(e)(2)(B)(ii) is reviewed de novo, viewing the allegations in the
    
    complaint as true.” Hughes v. Lott, 
    350 F.3d 1157
    , 1159–60 (11th Cir. 2003).
    
    “The language of section 1915(e)(2)(B)(ii) tracks the language of Federal Rule of
    
    Civil Procedure 12(b)(6), and we will apply Rule 12(b)(6) standards in reviewing
    
    dismissals under section 1915(e)(2)(B)(ii).” Mitchell v. Farcass, 
    112 F.3d 1483
    ,
    
    1490 (11th Cir. 1997).
    
          “[A] pro se complaint, however inartfully pleaded, must be held to less
    
    stringent standards than formal pleadings drafted by lawyers and can only be
    
    dismissed for failure to state a claim if it appears beyond doubt that the plaintiff
    
    can prove no set of facts in support of his claim which would entitle him to relief.”
    
    Estelle v. Gamble, 
    97 S. Ct. 285
    , 292 (1976) (internal quotations omitted). When
    
    issues are raised for the first time in objections to the magistrate’s report, we
    
    review them since the district court had an opportunity to address the merits of the
    
    contentions. United States v. Puett, 
    735 F.2d 1331
    , 1334 n.2 (11th Cir. 1984). “A
    
    section 1983 claim is conditioned on two essential elements: first, the conduct
    
    complained of must have been committed by a person acting under color of state
    
    law; second, this conduct must have deprived the plaintiff of rights, privileges, or
    
    
    
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    immunities secured by the Constitution or the laws of the United States.”
    
    Whitehorn v. Harrelson, 
    758 F.2d 1416
    , 1419 (11th Cir. 1985).
    
           “It is well established in this circuit that supervisory officials are not liable
    
    under § 1983 for the unconstitutional acts of their subordinates on the basis of
    
    respondeat superior or vicarious liability.” Hartley v. Parnell, 
    193 F.3d 1263
    ,
    
    1269 (11th Cir. 1999) (internal quotations omitted). A clerk of a state court
    
    performing routine duties such as entering an order and notifying parties enjoys
    
    qualified immunity from damages actions for injuries caused by that conduct. See
    
    Williams v. Wood, 
    612 F.2d 982
    , 984 (5th Cir. 1980)2 (discussing the immunity of
    
    federal clerks drawing an analogy from the immunity of state clerks). In Williams,
    
    the court found a complaint alleged facts that, if true, would overcome the clerk's
    
    qualified immunity and justify relief where the complaint alleged a deputy clerk of
    
    a federal district court (1) failed to notify the plaintiff of the entry of an order on
    
    plaintiff's motion and then told the plaintiff the order had not yet been rendered,
    
    (2) promised to contact the plaintiff by telephone when the order was rendered, but
    
    failed to do so, and (3) acted in bad faith and with malice. See id. at 986.
    
    
    
    
           2
              In Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en banc), this
    Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
    to close of business on September 30, 1981.
    
                                                   5
            The district court did not err by dismissing Hyland’s complaint for failure to
    
    state a claim as to Kolhage. Kolhage cannot be held liable on the basis of
    
    respondeat superior or vicarious liability for the actions of his subordinate,
    
    Thurston. See Hartley, 193 F.3d at 1269. However, taking the allegations in
    
    Hyland’s complaint as true, Thurston is not immune from the suit. Even though
    
    Hyland’s complaint stated Thurston “negligently” added the Keys to Recovery
    
    notation, he also claimed her actions were not “just an oversight or a failure to
    
    maintain records, but deliberate, affirmative, operational action, void of judgment
    
    or discretion . . . by private agenda.” Hyland claimed Thurston’s actions amounted
    
    to “malfeasance of bad faith.” Thus, Hyland was alleging Thurston was not only
    
    negligent but was acting with deliberate indifference. See Estelle, 97 S. Ct. at 292;
    
    Williams, 612 F.2d at 984–85. Accordingly, Thurston is not immune from this
    
    suit.
    
            Next, the district court erred by dismissing Hyland’s complaint based on the
    
    holding in Heck. In Heck, 114 S. Ct. at 2372, the Supreme Court held “to recover
    
    damages for an allegedly unconstitutional conviction or imprisonment, or for other
    
    harm caused by actions whose unlawfulness would render a conviction or sentence
    
    invalid, a § 1983 plaintiff must prove that the conviction or sentence has been
    
    reversed on direct appeal, expunged by executive order, declared invalid by a state
    
    
    
                                               6
    tribunal authorized to make such determination, or called into question by a federal
    
    court’s issuance of a writ of habeas corpus.” If this type of action is brought prior
    
    to the invalidation of the challenged conviction or sentence, it must be dismissed as
    
    premature. Id.
    
          Because the state court has already granted Hyland’s motion to dismiss the
    
    charge that he violated condition nine, habeas corpus relief is no longer available to
    
    him. Id. Thus, Hyland’s claim is cognizable under § 1983. It is understandable
    
    the magistrate recommended the dismissal of Hyland’s claim under Heck, because
    
    in his complaint, Hyland did not allege the state court had granted his motion to
    
    dismiss the petition as to violation of condition nine. However, in his handwritten
    
    objections to the R&R, Hyland submitted the court minutes showing the state court
    
    had granted his motion to dismiss with regard to violation nine., “issue of Keys to
    
    Recovery.” The district court had an opportunity to address the merits of this fact
    
    but failed to do so. See Puett, 735 F.2d at 1334 n.2. Thus, we vacate and remand
    
    with regard to this issue.
    
                                    III. CONCLUSION
    
          The district court did not err in err in dismissing the suit as to Kolhage
    
    because supervisory officials are not liable under 42 U.S.C. § 1983 for the
    
    unconstitutional acts of their subordinates on the basis of respondeat superior or
    
    
    
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    vicarious liability. We vacate and remand the dismissal of Hyland’s action against
    
    Thurston, however, because taking the allegations in his complaint as true,
    
    Thurston does not enjoy qualified immunity for her deliberate acts. Additionally,
    
    Heck is inapplicable to this case and does not bar Hyland’s claims.
    
          AFFIRMED IN PART, VACATED AND REMANDED IN PART.
    
    
    
    
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