Case: 13-12253     Date Filed: 04/22/2015   Page: 1 of 9


                                                             [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-12253
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:05-cv-22039-JEM



KELVIN D. HARRIS,

                                                                Plaintiff-Appellant,

                                      versus

MARIO P. GODERICK,
Circuit Court Judge
ALLEN DAVIS,
Probation Officer,
CIPRIANO GENE,
Assistant State Attorney,
MYRA TRINACHAT,
Assistant State Attorney,
EUGENE CIPRIANO,
Former State Attorney, et al.,

                                                             Defendants-Appellees,

S.L. HERMATAT, etc., et al.,

                                                                         Defendants.
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                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                       (April 22, 2015)

Before WILSON, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM:

       Kelvin D. Harris, a state prisoner proceeding pro se and in forma pauperis

(IFP), appeals a district court order dismissing his 42 U.S.C. § 1983 claims for

false arrest and malicious prosecution against the following defendants connected

with his 1989 probation revocation hearing: Florida Circuit Judge Mario

Goderich; 1 state prosecutors Eugene Cipriano and Myra Trinchet; Warrant Bureau

Director Fred Taylor; probation officer Allen Davis; public defender Leonard

Succar; Deputy H.L. Hermatet; and Miami-Dade County.

       Harris appealed an earlier dismissal in 2006, but we vacated that ruling and

remanded the case for further proceedings. The district court dismissed Harris’s

suit again in May 2013, and this appeal followed issuance of the final judgment.

Harris now argues that the district court erred by dismissing his § 1983 malicious

prosecution and false arrest claims against each defendant, pursuant to 28 U.S.C.

§ 1915(e)(2)(B). Upon review of the briefs and record on appeal, we affirm.

       1
        The case style reflects an incorrect spelling of the defendant’s name, which is
“Goderich,” not “Goderick.”
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      For ease of reference, we will address each point in turn.

                       I. Section 1983 Malicious Prosecution Claims

      A district court “shall dismiss” a complaint filed IFP if it finds that the

complaint “(1) is frivolous or malicious; (2) fails to state a claim on which relief

may be granted; or (3) seeks monetary relief against a defendant who is immune

from such relief.” 28 U.S.C. §§ 1915(e)(2)(B)(i)–(iii). We review the district

court’s dismissal for failure to state a claim pursuant to § 1915(e)(2)(B)(ii) de

novo, applying the same standards that govern Federal Rule of Civil Procedure

12(b)(6). Mitchell v. Farcass, 

, 1490 (11th Cir. 1997). Thus, we

must view the complaint in the light most favorable to the plaintiff, accepting all of

the plaintiff’s well-pleaded facts as true. Am. United Life Ins. Co. v. Martinez, 

, 1056–57 (11th Cir. 2007). Additionally, pro se pleadings are to be

liberally construed and held to a less stringent standard than pleadings drafted by

attorneys. See Powell v. Lennon, 

, 1463 (11th Cir. 1990). However,

in order to survive a motion to dismiss, the plaintiff’s complaint must contain facts

sufficient to support a plausible claim to relief. Ashcroft v. Iqbal, 

,

678–79, 

, 1949–50 (2009). Conclusory allegations and bare legal

conclusions are insufficient to preclude dismissal. See Oxford Asset Mgmt., Ltd. v.

Jaharis, 

, 1188 (11th Cir. 2002). A complaint is also subject to

dismissal “when its allegations, on their face, show that an affirmative defense bars


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recovery on the claim.” Douglas v. Yates, 

, 1321 (11th Cir. 2008)

(internal quotation marks omitted).

      A claimant is entitled to relief under § 1983 if he can prove that a person

acting under color of state law committed an act that deprived him of some right

protected by the Constitution or laws of the United States. We have “identified

malicious prosecution as a violation of the Fourth Amendment and a viable

constitutional tort cognizable under § 1983.” Wood v. Kesler, 

, 881

(11th Cir. 2003). The common law elements of malicious prosecution are:

      (1) an original judicial proceeding against the present plaintiff was
      commenced or continued; (2) the present defendant was the legal cause of
      the original proceeding; (3) the termination of the original proceeding
      constituted a bona fide termination of that proceeding in favor of the present
      plaintiff; (4) there was an absence of probable cause for the original
      proceeding; (5) there was malice on the part of the present defendant; and
      (6) the plaintiff suffered damages as a result of the original proceeding.


Kingsland v. City of Miami, 

, 1234 (11th Cir. 2004). A plaintiff

must therefore allege that the defendant acted without probable cause as a required

element of a § 1983 malicious prosecution claim. Id.; see also 

. An officer has probable cause to make an arrest when “the facts and

circumstances within the officer’s knowledge, of which he or she has reasonably

trustworthy information, would cause a prudent person to believe, under the

circumstances shown, that the suspect has committed, is committing, or is about to

commit an offense.” 

. Ordinarily, where an arrest warrant

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has been issued, a police officer is entitled to rely on the magistrate’s probable

cause determination, as long as that reliance is objectively reasonable. See United

States v. Leon, 

, 92–, 

, 3420–21 (1984).

      Certain defendants enjoy immunity from § 1983 damages as a result of their

official role. For instance, judges are entitled to absolute immunity for all actions

taken in their judicial capacity, except where they take action in a “clear absence of

all jurisdiction.” Bolin v. Story, 

, 1239 (11th Cir. 2000) (per curiam)

(internal quotation marks omitted). Absolute judicial immunity “applies even

when [a] judge’s acts are in error, malicious, or were in excess of his or her

jurisdiction.” 

are entitled to absolute immunity from

damages for their acts or omissions taken in the course of initiating a prosecution.

However, a prosecutor is not entitled to immunity if he is functioning

as an investigator or a complaining witness rather than an advocate for the

government. Rivera v. Leal, 

, 1353 (11th Cir. 2004).

      Moreover, a claimant is only entitled to relief under § 1983 if he can prove

that the defendant acted under color of law. The Supreme Court has held that “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

Cnty. v. Dodson, 

, 325, 

, 453, (1981).




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       Furthermore, a county or other local government entity may not be held

liable under § 1983 based solely upon respondeat superior. See McDowell v.

Brown, 

, 1289 (11th Cir. 2004). Rather, to impose § 1983 liability

on a county, a plaintiff must show: “(1) that his constitutional rights were violated;

(2) that the municipality had a custom or policy that constituted deliberate

indifference to that constitutional right; and (3) that the policy or custom caused

the violation.” 

relying on a county’s unofficial practice to establish

constitutional injury must demonstrate that the practice is so pervasive and

widespread as to be functionally equivalent to a formal policy. See Grech v.

Clayton Cnty., 

, 1330 & n.6 (11th Cir. 2003). A claimant does not

establish a custom or policy under § 1983 by alleging one isolated incident. 

case, the district court did not err by dismissing Harris’s § 1983

malicious prosecution. 2 We address each defendant in turn. First, Judge Goderich

was entitled to absolute judicial immunity because Harris alleged only that Judge

Goderich mistakenly issued a warrant for his arrest. See 

.

Similarly, Cipriano and Trinchet were each entitled to prosecutorial immunity for

their actions taken in the course of initiating a prosecution. See 

As to

defendant Succar, the district court properly dismissed Harris’s claims because a

       2
         For purposes of deciding this appeal, we will assume, arguendo, that Harris’s pro se
objections before the district court preserved his right to appellate review. See Resolution Trust
Corp. v. Hallmark Builders, Inc., 

, 1149 (11th Cir. 1993) (per curiam); 11th Cir. R.
3-1.
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public defender does not act under color of state law simply by representing a

criminal defendant. See 

, 102 S. Ct. at 453. Regarding

defendant Davis, Harris failed to plead any facts indicating that Davis lacked

probable cause to believe a probation violation occurred on the day he filed the

affidavit. See 

. As to defendants Taylor and Hermatet,

Harris failed to allege any facts indicating that a prudent officer in their position

would not have relied upon the independent probable cause determination made by

Judge Goderich when he issued an arrest warrant for Harris. See 

–23, 104 S. Ct. at 3420–21. Finally, as to Miami-Dade County, Harris alleged

only a single incident of deliberate indifference to his constitutional rights, and a

single isolated incident is insufficient to establish a custom or policy under § 1983.

See 

& n.6.

      Accordingly, viewing the complaint in the light most favorable to Harris, his

complaint did not allege facts sufficient to support a § 1983 claim for malicious

prosecution against any named defendant. Thus, the district court did not err by

dismissing his claims under 28 U.S.C. § 1915(e)(2)(B), and we affirm in this

respect.

                        II. Section 1983 False Arrest Claims

      We have identified false arrest as a violation of the Fourth Amendment and a

viable claim under § 1983. Ortega v. Christian, 

, 1525–26 (11th Cir.


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1996). A claim for false arrest arises when an arrest occurs without a warrant and

without probable cause. Brown v. City of Huntsville, 

, 734 (11th Cir.

2010). However, the existence of probable cause at the time of arrest serves as an

absolute bar to a false arrest claim. See 

1983 claims are subject to the statute of limitations

governing personal injury actions in the state in which the action was brought.

DeYoung v. Owens, 

, 1324 (11th Cir. 2011). In Florida, where

Harris brought this action, the applicable period for false arrest claims is four

years. Fla. Stat. § 95.11(3)(o). As noted previously, a complaint may be properly

dismissed when the allegations “show that an affirmative defense bars recovery on

the claim.” 

.

      In this case, the district court did not err by dismissing all of Harris’s § 1983

false arrest claims because his claims are barred by the statute of limitations. In his

amended complaint, Harris alleged that he was wrongfully arrested in September

1989. He did not file his original § 1983 complaint until July 2005, however, or

his final amended complaint until June 2012. Therefore, Harris filed his complaint

well after the four-year limitations period had run on his false arrest claims. See

; Fla. Stat. § 95.11(3)(o).

      Moreover, even assuming, arguendo, that Harris’s false arrest claims are not

barred by the statute of limitations, each non-immune defendant arguably


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possessed probable cause for actions taken in the course of prosecuting Harris for

his probation violation, and the existence of probable cause serves as an “absolute

bar” to a false arrest claim. See 

. Accordingly, the district

court did not err in dismissing Harris’s false arrest claims.

      Therefore, for the reasons set forth above, we affirm.

      AFFIRMED.




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