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                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 12-16291
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 0:12-cv-61429-RSR



MICHAEL D. GRIDER,

                                                             Plaintiff-Appellant,

                                   versus

PHYLLIS DIANE COOK,
SYED MUHAMMED FAISAL AFZAL,
individually and in their capacity as Assistant Public
Defender in the law Office for the Broward County Public Defender,
BROWARD COUNTY SHERIFF'S OFFICE,
BROWARD COUNTY, FLORIDA,

                                                           Defendants-Appellees.

                         ________________________

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

                                (June 17, 2013)
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Before TJOFLAT, BARKETT, and PRYOR, Circuit Judges.

PER CURIAM:

      Michael Grider, a Florida pre-trial detainee proceeding pro se and in forma

pauperis, appeals the district court’s sua sponte dismissal of his 42 U.S.C. § 1983

civil rights complaint against Phyllis Cook and Syed Muhammed Faisal Afzal,

individually and in their official capacities as Broward County assistant public

defenders, the Broward County Sheriff’s Office, and Broward County. At the time

Grider filed the complaint, he had been arrested and was being detained on arson

charges. The district court dismissed Grider’s complaint with prejudice under 28

U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.

      In his complaint, Grider asserted as follows. Since before the time of his

arrest, he has been subjected to an unlawful psychiatric program that was imposed

upon him without notice, a hearing, or an opportunity to object. His public

defender, Cook, obtained an order declaring Grider incompetent to stand trial

without Grider’s consent and with full knowledge that Grider was not mentally ill.

Grider’s public defender in the mental health court, Azfal, ignored Grider’s

demands to file a motion for reconsideration of the state trial court’s incompetency

ruling. While in the custody of Broward County Sheriff’s Office as part of the

psychiatric program, Grider has suffered numerous due process violations. Grider

alleges that the actions of Cook and Azfal, the Broward County Sheriff’s Office,


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and Broward County were part of an established custom or policy and were the

result of a conspiracy against Grider for the purpose of humiliating and

embarrassing him. He sought a writ of habeas corpus, in addition to monetary,

injunctive, and declaratory relief.

       On appeal, Grider argues that the district court erred in dismissing his

complaint for failure to state a claim because the district court did not take the

allegations in his complaint as true and relied on information outside of the

complaint, specifically his state criminal proceedings. He also argues that even if

dismissal was appropriate, he should have been given the opportunity to amend.

                                  I.      Failure to State a Claim

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

a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), and view the allegations in the

complaint as true. 1 Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). The

facts as pleaded must state a claim for relief that is “plausible on its face,”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and the “plaintiff’s obligation to

provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of the cause of action will


       1
         The statute provides that, for parties proceeding in forma pauperis, “the court shall
dismiss the case at any time if the court determines that the action or appeal fails to state a claim
on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). Dismissal under
§ 1915(e)(2)(B)(ii) is governed by the same standard as a dismissal under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997).


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not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, (2007) (brackets

omitted). 2

       Viewing the allegations in Grider’s complaint as true, the district court

properly dismissed his complaint for failure to state a claim. As to Grider’s

requested relief seeking a writ of habeas corpus and his immediate release, this

relief is not cognizable under § 1983. See Bradley v. Pryor, 305 F.3d 1287, 1289

(11th Cir. 2002) (“[H]abeas corpus [rather than § 1983] is the exclusive remedy for

a state prisoner who challenges the fact or duration of his confinement and seeks

immediate or speedier release.” (citing Preiser v. Rodriguez, 411 U.S. 475 (1973)).

The district court also found Grider’s claims for monetary damages stemming from

his confinement barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994), which

held that an action for damages under § 1983 is not cognizable if a judgment in the

plaintiff’s favor on that action “would necessarily imply the invalidity of his

conviction or sentence,” and the conviction or sentence has not been reversed,

expunged, or invalidated. This holding was in error because even if the Heck bar

applies to pretrial detainees, a proposition drawn into question by the Supreme


       2
         Although Grider argues that the district court relied on information not contained in the
complaint, the district court was permitted to take judicial notice of Grider’s state court criminal
proceedings, which indicated that Grider had been charged with first degree arson and that he
had received a competency hearing. See Lozman v. City of Riviera Beach, Fla., No. 11-15448,
manuscript op. at 14 n.9 (11th Cir. April 1, 2013) (permitting judicial notice of court documents
from a state eviction action at the 12(b)(6) stage without converting the matter to summary
judgment proceedings). In any event, as the district court correctly noted, none of the facts of
which it took judicial notice affected the dismissal ruling.
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Court in Wallace v. Kato, 549 U.S. 384, 393 (2007), the principles of Heck are not

applicable to Grider’s claims. That is because his claims, as stated in his

complaint, turn on his conditions of confinement, incompetency status, and being

subjected to a psychiatric program before his arrest for arson, and any potential

judgment for money damages related to those claims would not “necessarily imply

the invalidity of his [potential future] conviction or sentence.” Heck, 512 U.S. at

487. However, for the reasons discussed below, Grider failed to adequately allege

facts that would support his claims for damages and his claims were therefore

properly dismissed.

      With respect to Grider’s claims against Cook and Azfal, Grider’s public

defenders in his criminal proceeding, the Supreme Court has held that public

defenders do not act under color of state law when “performing a lawyer’s

traditional functions as counsel to a defendant in a criminal proceeding,” and thus,

they are not liable under 42 U.S.C. § 1983 for such actions. Polk County v.

Dobson, 454 U.S. 312, 318, 325 (1981). Consequently Cook and Azfal may not

be sued under § 1983 for their actions taken in connection with representing Grider

before the state trial and mental health courts. Although Grider attempted to bring

Cook and Azfal within the realm of § 1983 by alleging that they conspired with the

Broward County Sheriff’s Office and Broward County to intentionally embarrass

and harass him, see Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985) (noting


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that “an attorney may be sued under section 1983 if he conspired with someone

who did act under color of state law”), Grider provided nothing more than a

“general conclusory allegation of conspiracy” which will not support such a claim.

Id. at 1173.

         As to Grider’s claims against the Broward County Sheriff’s Office and

Broward County, Grider stated nothing more than conclusory allegations of

constitutional violations. Twombly, 550 U.S. at 555. Grider provided a formulaic

recitation of a claim under Monell v. Department of Social Services 3 by stating that

“defendants’ conduct was the product of an official policy or unofficial custom,”

but he did not provide any specific facts about any policy or custom that resulted in

his alleged constitutional deprivation. Twombly, 550 U.S. at 555. Accordingly,

we affirm the district court’s dismissal of Grider’s complaint for failure to state a

claim.

                                    II. Dismissal with Prejudice

         We have held that “[w]here a more carefully drafted complaint might state a

claim, a plaintiff must be given at least one chance to amend the complaint before

the district court dismisses the action with prejudice.” Bank v. Pitt, 928 F.2d 1108,

1112 (11th Cir. 1991), overruled in part by Wagner v. Daewoo Heavy Indus. Am.

         3
          Monell provides that while “a local government may not be sued under § 1983 for an
injury inflicted solely by its employees or agents,” it may nonetheless be responsible under §
1983 when the “execution of a government’s policy or custom . . . inflicts the injury.” 436 U.S.
658, 694 (1978).
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Corp., 314 F.3d 541, 542 & n.1 (11th Cir. 2002) (holding that a district court is not

required to sua sponte grant leave to amend to counseled plaintiffs who never

requested leave to amend, but noting that this holding does not disturb a pro se

litigant’s right to amend). Although a pro se litigant must generally be permitted

to amend his complaint, a district court need not allow amendment where

amendment would be futile, or in other words, still subject to dismissal. Cockrell

v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007).

      As discussed above, Grider’s requests for a writ of habeas corpus and

immediate release are not cognizable under § 1983. However, with respect to his

§ 1983 damages claims, those claims failed because Grider did not support his

conclusory allegations with sufficient facts. Because it is not clear that these

claims would otherwise be subject to dismissal, the district court erred in

dismissing these claims with prejudice because as a pro se litigant Grider should

have been given at least one opportunity to amend. Bank, 928 F.2d at 1112. In an

amended complaint, Grider could submit additional facts to support his conclusory

allegations of a conspiracy or a county “pattern” or “practice” that led to the

violation of his constitutional rights. Although it is possible that there are

additional facts that would preclude his claims or that he would be unable to

marshal sufficient facts to plausibly state a claim, it is not apparent from the face of

his complaint that he should not be entitled to at least one opportunity to amend.


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Should Grider properly state a claim on remand, the district court can consider

whether any immunities or abstention would apply to the otherwise properly stated

complaint. Therefore, we vacate and remand to the district court to provide Grider

the opportunity to amend his complaint.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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