             Case: 14-13810    Date Filed: 07/10/2015   Page: 1 of 6


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 14-13810
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 6:14-cv-00044-BAE-JEG

ADRIAN JENKINS,

                                                              Plaintiff-Appellant,

                                     versus

SUSAN M. WALKER,
DAVID BIKOFF,

                                                           Defendants-Appellees.

                          ________________________

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

                                 (July 10, 2015)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Adrian Jenkins appeals pro se the district court’s sua sponte dismissal, for

failure to state a claim under 28 U.S.C. § 1915A(b)(1), of his 42 U.S.C. § 1983

complaint against court reporter Susan Walker and Georgia assistant attorney
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general David Bikoff. Jenkins claims in the complaint that during proceedings for

his state habeas petition, he was denied due process and access to the courts

because Bikoff opposed his motion for a continuance of the habeas evidentiary

hearing until Jenkins could obtain free trial transcripts. Then, says Jenkins, when

he finally did receive the transcripts, several keys portions were altered or deleted,

despite Walker certifying the transcripts were true and correct. On appeal, Jenkins

argues that he suffered an actual injury when Bikoff opposed his motion for the

transcripts, and when the state court based its habeas corpus ruling on the defective

transcripts. After careful review, we affirm in part and vacate and remand in part.

      We review de novo a district court’s sua sponte dismissal for failure to state

a claim under 28 U.S.C. § 1915A(b)(1). Boxer X v. Harris, 437 F.3d 1107, 1110

(11th Cir. 2006). In evaluating dismissals under § 1915(b)(1), we use the same

standard that governs dismissals under Fed.R.Civ.P. 12(b)(6). See Leal v. Ga.

Dep’t of Corr., 254 F.3d 1276, 1278-79 (11th Cir. 2001) (concluding that § 1915A

mirrors the language of dismissals under § 1915(e), which, in turn, tracks the

language of Rule 12(b)(6)). The complaint is viewed in the light most favorable to

the plaintiff, and the plaintiff’s well-pleaded facts are accepted as true. Am.

United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). To avoid

dismissal, the complaint must state a claim for relief that is plausible on its face.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim has facial plausibility when


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the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged. Id.

      An indigent litigant’s fundamental right to have access to the courts requires

that an inmate be provided a reasonably adequate opportunity to present claimed

violations of fundamental constitutional rights. Vanderberg v. Donaldson, 259

F.3d 1321, 1323 (11th Cir. 2001). States should provide a trial transcript or

adequate substitute in order to provide for “adequate and effective” appellate

review. See Griffin v. Illinois, 351 U.S. 12, 20 (1956). A prisoner alleging an

access-to-the-courts violation must show (1) actual injury; and (2) a non-frivolous,

arguable underlying claim. Barbour v. Haley, 471 F.3d 1222, 1226 (11th Cir.

2006). Examples of actual injury include missing filing deadlines or being

prevented from presenting claims. Wilson v. Blankenship, 163 F.3d 1284, 1290

n.10 (11th Cir. 1998).

      A prosecutor’s actions “intimately associated with the judicial phase of the

criminal process” are protected by absolute immunity. Burns v. Reed, 500 U.S.

478, 492 (1991) (quotation omitted). This immunity extends to the post-sentencing

conduct of a prosecutor. Hart v. Hodges, 587 F.3d 1288, 1296 (11th Cir. 2009).

Thus, a prosecutor has absolute immunity for presentation of evidence at post-

sentencing habeas corpus proceedings. Id.




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      Generally, when a more carefully drafted complaint might state a claim, a

district court should give a pro se plaintiff at least one chance to amend the

complaint before the court dismisses the action. Bank v. Pitt, 928 F.2d 1108, 1112

(11th Cir. 1991), overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp.,

314 F.3d 541, 542 & n.1 (11th Cir. 2002) (en banc). See also Fed.R.Civ.P. 15.

However, a district court need not allow amendment if the amended complaint

would still be subject to dismissal. Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th

Cir. 2007). Moreover, pro se pleadings are held to less stringent standards than

those drafted by lawyers and are liberally construed by this Court. Alba v.

Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). We may affirm on any basis

supported by the record, regardless of whether the district court decided the case

on that basis. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001).

      Here, Jenkins failed to state a claim that assistant attorney general Bikoff, in

objecting to his motion for a continuance, caused him an actual injury in his state

habeas corpus proceeding.      Notably, Jenkins did not indicate how Bikoff’s

objection to his receiving free transcripts injured his habeas petition. See Barbour,

471 F.3d at 1226. He did not allege that the lack of transcripts rendered him

unable to raise his claims before the state court or that he missed any deadlines.

See Wilson, 163 F.3d at 1290 n.10. Rather, Jenkins alleged that he received the




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transcripts several months later, and that he had the transcripts by the time of the

second state habeas evidentiary hearing.

       In any event, assistant attorney general Bikoff is entitled to absolute

immunity. A district court may dismiss a civil action from a prisoner against a

governmental employee if it seeks monetary relief from a defendant who is

immune from such relief. 28 U.S.C. § 1915A(b)(2). Bikoff’s alleged conduct

occurred during a habeas corpus hearing, a judicial phase, and thus is protected by

absolute immunity. Burns, 500 U.S. at 492. We affirm the court’s dismissal of

Jenkins’s claim against assistant attorney general Bikoff.

       While Jenkins also did not sufficiently allege that he suffered an actual

injury due to Walker’s alleged falsification of the transcripts, we vacate and

remand to give Jenkins an opportunity to amend his complaint. See Bank, 928

F.2d at 1112.       As the record shows, his complaint noted what was missing or

altered in the transcripts, but did not indicate how the alterations or deletions

injured his state habeas petition. However, the state court did not issue its habeas

opinion until after Jenkins filed his § 1983 complaint, and a few weeks before the

district court’s order dismissing the complaint. 1 As a result, Jenkins may be able to

state a claim by referencing the state court’s habeas opinion, in which the state
1
  Generally, we do not consider evidence attached to an appellant’s brief for the first time on
appeal. S & Davis Int’l, Inc. v. The Republic of Yemen, 218 F.3d 1292, 1299 n.5 (11th Cir.
2000). But we may take judicial notice of another court’s order for the limited purpose of
recognizing the “judicial act” that the order represents. United States v. Jones, 29 F.3d 1549,
1553 (11th Cir. 1994).
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court denied Jenkins’s claims of ineffective assistance of counsel, and by showing

injury from, for example, the state court’s reliance on an allegedly altered

transcript. See Griffin, 351 U.S. at 20. Moreover, unlike assistant attorney general

Bikoff, court reporter Walker is not entitled to absolute immunity, and thus

amendment is not futile. Cockrell, 510 F.3d at 1310. Accordingly, we vacate the

court’s dismissal of Jenkins’s complaint against court reporter Walker, and remand

in order to give Jenkins an opportunity to amend his complaint.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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