          Case: 17-13610   Date Filed: 07/02/2018   Page: 1 of 14


                                                         [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 17-13610
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:16-cv-62770-WPD



KENNETH WILK,

                                                           Plaintiff-Appellant,

                                versus

ST. LUCIE COUNTY FLA. SHERIFF OFFICE,
BROWARD COUNTY FLA. SHERIFF OFFICE,
NEIL SPECTOR,
KEVIN BUTLER,
ROY VRCHOTA, et al.,

                                                        Defendants-Appellees.

                      ________________________

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

                              (July 2, 2018)
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Before WILLIAM PRYOR, MARTIN and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Kenneth Wilk, a federal prisoner, appeals pro se the sua sponte dismissal of

his amended complaint that his civil rights were violated in the events that led to

his conviction for seven crimes, including the murder of Deputy Sheriff Todd Fatta

of the Broward County Sheriff’s Office, and a civil judgment against him for

Fatta’s wrongful death. See 42 U.S.C. § 1983. We affirm.

                                I. BACKGROUND

      In 2007, a federal jury convicted Wilk of seven crimes, including the murder

of Deputy Fatta and the attempted murder of Sergeant Angelo Cedeno as they

aided federal agents executing a warrant to search Wilk’s home. See United States

v. Wilk, 572 F.3d 1229, 1232–34 (11th Cir. 2009). In 2001, while Wilk’s domestic

partner, Kelly Jones, was awaiting trial for crimes involving child pornography,

Wilk threatened officers and posted messages online that he “hunt[ed] cops.” In

2004, agents obtained a warrant to search Wilk’s home after an undercover agent

received child pornography from Jones and intercepted an instruction she gave

Wilk to delete incriminating emails. Wilk shot Fatta and Cedeno as they entered

his residence to execute the warrant. Id. The district court sentenced Wilk to

imprisonment for life, fined him $25,000, and ordered the forfeiture of his interest

in his house. Later, the district court amended its judgment and ordered Wilk to


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pay more than $4 million in restitution, part of which was payable to Fatta’s

family, after the family settled their civil action against Wilk, the Broward County

Sheriff’s Office, and other persons for wrongful death. Wilk appealed his

convictions and we affirmed. Id. at 1234–39.

      In 2010, Wilk moved for relief from his convictions and sentence. 28 U.S.C.

§ 2255. Wilk attached to his motion a newspaper article describing a reprimand

Deputy Sheriff Neil Spector of the St. Lucie Sheriff’s Office received for his

improper participation in plea negotiations with and his role as a paid defense

witness for Mark Cohen. The district court denied Wilk’s motion, and we denied

Wilk’s application for a certificate of appealability.

      In 2016, Wilk filed his civil action against Spector, the sheriff’s offices of

St. Lucie and Broward Counties, two former sheriffs of Broward County, and

several Broward County deputies. See 42 U.S.C. § 1983. Wilk complained about

Spector committing extortion, fabricating evidence, and causing Wilk to loss his

liberty and property in violation of his rights to due process and equal protection

under the Fifth and Fourteenth Amendments. Wilk alleged that, after Jones was

arrested in 2001, Wilk paid Spector $500 to release Jones’s car and rejected

Spector’s offer to dismiss Jones’s pornography charges for $10,000. Wilk also

alleged that he had a plan to expose Spector, but Spector discovered the plan and

fabricated evidence to obtain warrants to arrest Wilk and search his home.


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According to Wilk, in 2004, Spector led a group of unwitting deputies to execute

the warrants and planted evidence in Wilk’s home that was used to convict him.

      Wilk complained about a conspiracy by the St. Lucie’s Sheriff’s Office and

its officers to withhold exculpatory evidence. Wilk alleged that, after the public

disclosure of Spector’s corruption, the sheriff and administrators in St. Lucie

County conspired to limit their liability by withholding reports regarding Spector’s

extortion of citizens and criminal defendants. Wilk requested that the district court

order the Sheriff’s Office to produce Spector’s personnel file, including

disciplinary reports and the findings from internal affairs investigations.

      Wilk also complained that the Broward County Sheriff’s Office, its former

sheriffs, and its administrators violated office protocol for serving a high risk

search warrant; that they conspired to defraud Wilk and his insurance company and

to deny him due process and equal protection by blaming him for Fatta’s death;

and that they unlawfully seized evidence from Wilk’s home. Wilk alleged that the

Broward County Sheriff’s Office customarily used trained tactical teams to execute

risky warrants, but the office sent to Wilk’s home a group of deputies who were

inadequately equipped and trained and were under the influence of drugs. Wilk

also alleged that the Sheriff’s Office, its former sheriffs, and its deputies concealed

internal reports and gave false testimony during the Fattas’ civil trial about office

protocol for serving warrants, which resulted in a judgment against Wilk that was


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paid by his homeowners insurance provider. Wilk requested copies of reports

describing the protocol the Broward County Sheriff’s Office followed to execute

warrants.

      The district court adopted the recommendations of a magistrate judge to

dismiss sua sponte Wilk’s amended complaint for failure to state a claim, 28

U.S.C. § 1915(e)(2)(B), and to decline to exercise supplemental jurisdiction over

Wilk’s claims under Florida law. The district court ruled that the two sheriff’s

offices were not legal entities subject to suit; that their officers were immune from

suit in their official capacities; and that Wilk had an adequate remedy under

Florida law to sue the State for the actions of Broward County officials that caused

Wilk to lose ownership interest in his home and to incur the judgment that his

insurer paid. With respect to Wilk’s claims against the officials of Broward

County, the district court ruled that Wilk’s allegations were insufficient to state a

plausible claim of supervisory liability against its former sheriffs; that Wilk’s

complaint contained no facts that the officials agreed to violate Wilk’s right to due

process; and that Wilk failed to identify either a protected class to which he

belonged or a similarly situated individual who had been treated more favorably.

As to Wilk’s claims against officials of St. Lucie County, the district court ruled

that Wilk’s claims about his actual innocence in shooting Fatta, about officials

withholding exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83


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(1963), and about his requests to obtain personnel and disciplinary files to establish

his innocence necessarily implicated his convictions and were barred under Heck.

And because “none of [Wilk’s] federal claims . . . survived screening,” the district

court declined to exercise supplementary jurisdiction over Wilk’s claims of fraud

and conspiracy in violation of state law.

                         II. STANDARDS OF REVIEW

      We apply two standards of review in this appeal. We review de novo the sua

sponte dismissal of a complaint for failure to state a claim. Boxer X v. Harris, 437

F.3d 1107, 1110 (11th Cir. 2006). Although we read pro se filings liberally, Alba v.

Montford, 517 F.3d 1249, 1252 (11th Cir. 2008), we will not “rewrite an otherwise

deficient pleading in order to sustain an action,” Campbell v. Air Jam. Ltd., 760

F.3d 1165, 1168–69 (11th Cir. 2014) (quoting GJR Invs., Inc. v. Cty. of Escambia,

Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)). We review for abuse of discretion the

failure of a magistrate judge to sua sponte recuse, see Murray v. Scott, 253 F.3d

1308, 1310 (11th Cir. 2001), and the refusal of a request for discovery, see

Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir.

2011). We also review for abuse of discretion a decision to decline to exercise

supplemental jurisdiction over claims under state law. Utopia Provider Sys., Inc. v.

Pro-Med Clinical Sys., LLC, 596 F.3d 1313, 1328 (11th Cir. 2010).




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                                  III. DISCUSSION

      Wilk challenges the dismissal of his amended complaint. Wilk argues that he

could sue the sheriff’s offices; that the officials in St. Lucie and Broward Counties

are liable in their official capacities for violating state and county policy and for

their manipulation of evidence; that he alleged facts sufficient to establish civil

conspiracies by the officers in St. Lucie County and by the officers in Broward

County; and that his claims of conspiracy are not barred under Heck. Wilk also

argues that the magistrate judge should have recused from his case; that he was

entitled to discovery of reports about Spector; and that the district court should

have considered his claims that the officers violated state law. These arguments

fail. We address each in turn.

A. The Sheriff’s Offices of St. Lucie and Broward Counties Are Not Subject to Suit.

      The district court correctly dismissed Wilk’s claims against the sheriff’s

offices. “Sheriff's departments and police departments are not usually considered

legal entities subject to suit, but capacity to sue or be sued shall be determined by

the law of the state in which the district court is held.” Dean v. Barber, 951 F.2d

1210, 1214 (11th Cir. 1992) (internal citations omitted); Fed. R. Civ. P. 17(b).

Under Florida law, sheriff’s offices lack the legal capacity to be sued. See Fla. City

Police Dep’t v. Corcoran, 661 So. 2d 409, 410 (Fla. Dist. Ct. App. 1995).


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B. Wilk Failed to Allege that St. Lucie or Broward Counties Had Official Policies
                  or Customs that Violated His Federal Rights.

      Section 1983 provides a remedy for deprivations of federal rights by a

person acting under color of state law. Almand v. DeKalk Cty., 103 F.3d 1510,

1513 (11th Cir. 1997). Unlike the sheriff’s offices, Broward County is a “person”

subject to suit under section 1983. See Quinn v. Monroe Cty., 330 F.3d 1320, 1325

(11th Cir. 2003). The action against the former sheriffs and deputies of Broward

County in their official capacities are “the same as a suit against the entity of which

the officer[s] . . . [are] agent[s].” See McMillan v. Monroe Cty., Ala., 520 U.S. 781,

785 n.2 (11th Cir. 1997) (internal quotations omitted and alterations adopted); see

also Lucas v. O’Loughlin, 831 F.2d 232, 235 (11th Cir. 1987) (holding county

liable for an official capacity suit against a sheriff in Florida).

      To establish liability against a local government under section 1983, a

plaintiff must prove a violation of his federal rights; that a custom or policy of the

local government caused the violation of his rights; and that the violation injured

him. McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). A policy is a

decision that is officially adopted by the county or created by a central official,

whereas “[a] custom is a practice that is so settled and permanent that it takes on the

force of law.” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.

1997). “Normally[,] random acts or isolated incidents are insufficient to establish a
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custom or policy.” Depew v. City of St. Marys, Ga., 787 F.2d 1496, 1499 (11th

Cir. 1986).

      For an officer’s policy decisions to be attributable to the local government,

the official must have final policymaking authority. Campbell v. Rainbow City,

434 F.3d 1306, 1312 (11th Cir. 2006). Whether an official is a “final policymaker”

is dependent on state law. McMillian, 520 U.S. at 785–86. We have ruled that

police chiefs in Florida enjoy final policymaking authority for law enforcement

matters in their municipalities. Cooper v. Dillon, 403 F.3d 1208, 1222 (11th Cir.

2005); see Fla. Const. Art. VIII, § 1(d) (labeling sheriffs “county officers”); Fla.

Const. Art. VIII, § 2(b) (“[m]unicipalities shall have governmental, corporate and

proprietary powers to enable them to conduct municipal government”).

      The district court correctly dismissed Wilk’s claims against the former

sheriffs and the deputies of Broward County and the officers of St. Lucie County

because Wilk failed to allege that the officers’ violations of his rights were

attributable to any official custom or policy. Wilk’s allegations that the officers

violated his rights were based on “a single act of . . . misconduct.” See McDowell,

392 F.3d at 1293 (quoting Anderson v. City of Atlanta, 778 F.2d 678, 685 (11th

Cir. 1985)). Wilk identified no policy in Broward County permitting, or another

incident involving, the fabrication of evidence, the concealment of exonerating

evidence, or the concealment of a violation of an office policy or procedure that


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resulted in a civilian instead of the sheriff’s office being blamed for the death of an

officer. See Depew, 787 F.2d at 1499. Wilk also alleged no policy or practice by

the Sheriff’s Office of St. Lucie County of withholding evidence to limit liability

for its officers’ misdeeds. Although Wilk alleged that Spector’s misconduct was

widespread, he was not a final policymaker for the Sheriff’s Office of St. Lucie

County and could not be liable in his official capacity as an officer of the County.

See Campbell, 434 F.3d at 1312.

  C. Wilk Failed To State a Claim that the Officers in Broward County or in St.
         Lucie County Conspired To Violate his Constitutional Rights.

      To establish a claim of conspiracy under section 1983, “a plaintiff must

show that the parties reached an understanding to deny the plaintiff his or her

rights and prove an actionable wrong to support the conspiracy.” Bailey v. Bd. of

Cty. Comm’rs of Alachua Cty., Fla., 956 F.2d 1112, 1122 (11th Cir. 1992) (internal

quotation marks and citation omitted) (alteration adopted). The complaint must

inform the defendants “of the nature of the conspiracy which is alleged. It is not

enough to simply aver in the complaint that a conspiracy existed.” Fullman v.

Graddick, 739 F.2d 553, 557 (11th Cir. 1984).

      The Due Process Clause of the Fourteenth Amendment provides that no state

shall “deprive any person of life, liberty, or property, without due process of law.”

U.S. Const. Amend. XIV, § 1. A violation of procedural due process occurs where

the state fails to provide due process in the deprivation of a protected liberty
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interest and “refuses to provide a process sufficient to remedy the procedural

deprivation.” McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (en banc). A

claim “alleging a denial of procedural due process requires proof of three elements:

(1) a deprivation of a constitutionally-protected liberty or property interest;

(2) state action; and (3) constitutionally-inadequate process.” Grayden v. Rhodes,

345 F.3d 1225, 1232 (11th Cir. 2003). Ordinarily, all the process that is required

“in a civil case is proper notice and service of process and a court of competent

jurisdiction.” Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1027 (5th Cir. Unit B 1982).

      Wilk failed to state a claim that the former sheriffs and officers of Broward

County deprived Wilk of due process as part of a conspiracy to shield the sheriff’s

office from liability. Wilk alleged that the officers’ actions resulted in the entry of

a civil judgment against him, but he did not allege that he was denied notice of or

the opportunity to present evidence and be heard before entry of the judgment. The

district court did not err in dismissing Wilk’s claim of conspiracy on the ground

that he “failed to state a facially sufficient claim of a constitutional violation” and

necessarily was “unable to support a conspiracy claim” against the officers of

Broward County.

      Wilk also failed to state a claim that the officers of St. Lucie County

conspired to violate his constitutional rights. The district court ruled that Wilk’s

claim that the officers’ concerted refusal to produce Spector’s personnel and


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disciplinary files was barred by Heck, but we need not address the application of

Heck because we can affirm on the basis that Wilk failed to satisfy the threshold

requirement to establish that a conspiracy existed. See Thomas v. Cooper Lighting,

Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (“We may affirm the district court’s

judgment on any ground that appears in the record, whether or not that ground was

relied upon or even considered by the court below.”). “In civil rights and

conspiracy actions, conclusory, vague, and general allegations of conspiracy may

justify dismissal of a complaint.” Kearson v. S. Bell Tel. & Tel. Co., 763 F.2d 405,

407 (11th Cir. 1985). Wilk alleged no facts that the officers “reached an[y]

understanding,” see Bailey, 956 F.2d at 1122, much less an understanding to

withhold exculpatory evidence. The district court correctly dismissed Wilk’s claim

of a civil conspiracy by the officers of St. Lucie County.

  D. The Magistrate Judge Was Not Required to Sua Sponte Recuse From Wilk’s
                                Civil Action.

      The magistrate judge did not abuse his discretion by failing sua sponte to

recuse from Wilk’s civil action. Recusal is necessary only when “an objective,

fully informed lay observer would entertain significant doubt about the judge’s

impartiality.” In re Walker, 532 F.3d 1304, 1310 (11th Cir. 2008) (quoting Christo

v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000)). A magistrate judge should

recuse when his conduct reflects “such pervasive bias and prejudice that it

constitutes bias against a party,” but “rulings adverse to a party . . . [do not]
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constitute pervasive bias.” Hamm v. Members of Bd. of Regents of State of Fla.,

708 F.2d 647, 651 (11th Cir. 1983). Wilk argues that the magistrate judge’s

participation in Wilk’s prior criminal proceedings created an appearance of

partiality, see 28 U.S.C. § 455(a), but neither the magistrate judge’s adverse

rulings, nor his familiarity with Wilk’s criminal case mandated recusal.

 E. Wilk Was Not Entitled to Obtain Discovery from Officials of St. Lucie County.

      Wilk argues that the district court prematurely dismissed his complaint

before allowing him to obtain discovery about Spector’s misconduct, but we

disagree. A district court is required to screen any “complaint in a civil action in

which a prisoner seeks redress from a governmental entity or officer or employee

of a governmental entity” before allowing service of process and allowing

discovery. 28 U.S.C. § 1915A(a). Because the district court determined that Wilk’s

amended complaint failed to state a claim for relief, Wilk was not entitled to

conduct discovery.

 F. The District Court Did Not Abuse Its Discretion When It Declined to Exercise
            Supplemental Jurisdiction Over Wilk’s State Law Claims.

      The district court did not abuse its discretion when it declined to exercise

supplemental jurisdiction over Wilk’s remaining claims under state law. A district

court may decline to exercise supplemental jurisdiction over a state claim after

dismissing all federal claims over which it has original jurisdiction. Id.

§ 1367(c)(3). We “encourage[ ] district courts to dismiss any remaining state
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claims when, as here, the federal claims have been dismissed prior to trial.” Raney

v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir. 2004).

                               IV. CONCLUSION

      We AFFIRM the dismissal of Wilk’s amended complaint.




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