Victor Baxter v. Dana Washington , 201 F. App'x 656 ( 2006 )


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  •                                                      [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    SEPT 11, 2006
    No. 06-10929                 THOMAS K. KAHN
    Non-Argument Calendar                CLERK
    ________________________
    D. C. Docket No. 05-23167-CV-AJ
    VICTOR BAXTER,
    Plaintiff-Appellant,
    versus
    DANA WASHINGTON, Sued in his individual and
    official capacity,
    Defendant-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (September 11, 2006)
    Before DUBINA, HULL and KRAVITCH, Circuit Judges.
    PER CURIAM:
    I.
    Victor Baxter, a federal prisoner proceeding pro se,1 appeals the district
    court’s sua sponte dismissal under 28 U.S.C. §§ 1915A and 1915(e) of his civil
    rights action.2
    Baxter filed the instant suit against Assistant U.S. Attorney Dana
    Washington seeking compensatory and punitive damages and declaratory relief.
    Baxter alleged that Washington presented perjured testimony to a grand jury and
    that Washington added information to the transcripts from the grand jury
    proceedings and used that information to obtain a superceding indictment.
    Because Baxter is a prisoner proceeding in forma pauperis, the district court
    conducted the required screening under 28 U.S.C. §§ 1915A and 1915. Section
    1915A requires the court to review a complaint filed by a prisoner-plaintiff against
    a government officer and to dismiss the complaint if it is frivolous, malicious, fails
    to state a claim upon which relief may be granted, or seeks monetary relief from a
    defendant who is immune from such relief. See 28 U.S.C. § 1915A. A complaint
    1
    Baxter was convicted by a jury of federal narcotics offenses and sentenced to a term of
    imprisonment.
    2
    Although Baxter claims that the complaint was brought pursuant to 42 U.S.C. § 1983,
    because he alleges the deprivation of a constitutional right by a federal official, it actually was
    based upon Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 
    403 U.S. 388
    (1971). As the district court did not dismiss the case on this ground, it is immaterial.
    Furthermore, courts apply section 1983 law to Bivens claims. See Abella v. Rubino, 
    63 F.3d 1063
    , 1065 (11th Cir. 1995).
    2
    fails to state a claim when it appears beyond doubt that the plaintiff could prove no
    set of facts that would entitle him to relief. Brower v. County of Inyo, 
    489 U.S. 593
    , 598 (1989). Section 1915 requires the court to dismiss a complaint on the
    same grounds when a prisoner-plaintiff proceeds in forma pauperis. 28 U.S.C. §
    1915(e); see also Bilal v. Driver, 
    251 F.3d 1346
    , 1349 (11th Cir. 2001).
    The district court dismissed Baxter’s claims for monetary relief because the
    claims were barred by prosecutorial immunity and also dismissed Baxter’s claim
    for declaratory relief for failure to state a claim. Baxter filed a motion for
    reconsideration, which the district court denied. Baxter then filed this appeal.
    II.
    We first determine the proper standard of review when a district court
    dismisses an action seeking monetary relief from a defendant who is immune from
    such relief under 28 U.S.C. §§ 1915A(b)(2) and 1915(e)(2)(B)(iii). We conclude
    that our determination involves a question of law that requires de novo review.
    Cohen v. United States, 
    151 F.3d 1338
    , 1340 (11th Cir. 1998) (“We review a
    district court’s legal conclusion de novo....”); see also McGore v. Wrigglesworth,
    
    114 F.3d 601
    , 604 (6th Cir. 1997) (applying de novo review to §§ 1915(e)(2) and
    1915A(b)). The standard of review for a dismissal for failure to state a claim under
    both 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(ii) is also de novo. Brown v.
    3
    Johnson, 
    387 F.3d 1344
    , 1347 (11th Cir. 2004) (discussing dismissal under
    § 1915(e)(2)(B)(ii)); Leal v. Ga. Dep’t of Corr., 
    254 F.3d 1276
    , 1278-79 (11th Cir.
    2001) (discussing dismissal under § 1915A(b)(1)).
    III.
    On appeal, Baxter first argues that Washington was not entitled to absolute
    immunity because, when he personally assisted in drafting the affidavit in support
    of a search warrant, his actions were not intimately associated with the judicial
    process.
    As is well established, prosecutors are absolutely immune from damages for
    actions that are intimately associated with the judicial phase of the criminal
    process. Imbler v. Pachtman, 
    424 U.S. 409
    , 428 (1976). This immunity extends to
    the use of false testimony and the suppression of exculpatory evidence at trial.
    Fullman v. Graddick, 
    739 F.2d 553
    , 559 (11th Cir. 1984). It also applies to a
    prosecutor’s actions before a grand jury and at a probable cause hearing in support
    of an application for a search warrant. Burns v. Reed, 
    500 U.S. 478
    , 490-92
    (1991). Here, Washington’s alleged actions fell within the scope of this absolute
    immunity doctrine, and, therefore, the district court correctly dismissed with
    prejudice Baxter’s damages claims.
    Although prosecutors are immune from damages for actions intimately
    4
    associated with the judicial process, they are susceptible to claims for declaratory
    relief. Supreme Court of Virginia v. Consumers Union, 
    446 U.S. 719
    , 736-37
    (1980). Thus, we must address the district court’s dismissal of Baxter’s claims for
    declaratory relief for failure to state a claim upon which relief can be granted.
    Here, Baxter alleged that Washington presented perjured testimony to the grand
    jury regarding the reliability of a confidential informant. He also alleged that
    statements by the court during a suppression hearing serve as further evidence of
    Washington’s “negligence” in this regard. Upon review of the record, we agree
    with the district court’s finding that Baxter failed to establish that Washington or
    the testifying DEA agent made any false or misleading statements to the grand
    jury. Therefore, the district court correctly dismissed without prejudice Baxter’s
    claim for declaratory relief.
    Baxter also alleged in his complaint that Washington improperly inserted
    information into the grand jury transcript. This issue was not addressed by the
    district court in its order of dismissal. Furthermore, in its order denying Baxter’s
    motion for reconsideration, the district court erroneously stated that Baxter failed
    to raise this issue in his complaint, but nevertheless stated, “[a]s I see it now, he
    has not alleged sufficient facts supporting such a claim.” After careful review of
    the record, we agree with the district court’s alternate conclusion that there was
    5
    insufficient factual evidence in the record to support a claim that Washington
    improperly inserted information into the grand jury transcript. See 
    Brown, 387 F.3d at 1351
    (“We may affirm the district court on any ground that finds support in
    the record.”).
    Finally, Baxter argues that the district court judge was biased and should
    have disqualified himself. This argument, however, was not raised in the district
    court and will not be considered here. See Narey v. Dean, 
    32 F.3d 1521
    , 1526-27
    (11th Cir. 1994). Even if this court were to consider this issue, we conclude that
    Baxter’s argument that the district court was biased is completely without merit.
    See Mike Ousley Prods. Inc. v. WJBF-TV, 
    952 F.2d 380
    , 383 (11th Cir. 1992).
    IV.
    Because prosecutorial immunity shielded Washington, the district court
    correctly dismissed Baxter’s claims for damages. Furthermore, because the record
    did not support Baxter’s factual allegations, the court properly dismissed his claims
    for declaratory relief. Accordingly, we AFFIRM.
    6