                                                            [DO NOT PUBLISH]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



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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).

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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.

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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.




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