                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             February 26, 2008
                             No. 06-15372                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                    D. C. Docket No. 04-10102-CV-SH

THOMAS GEORGE HYLAND,


                                                           Plaintiff-Appellant,

                                  versus

DANNY L. KOLHAGE,
RUTH THURSTON,


                                                        Defendants-Appellees.


                       ________________________

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

                           (February 26, 2008)

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:
      Thomas George Hyland, a state prisoner proceeding pro se and in forma

pauperis, appeals the district court’s order denying joinder of a Florida circuit court

judge as a defendant, denying re-joinder of another defendant, and dismissing his

complaint brought under 42 U.S.C. § 1983 for failure to state a claim upon which

relief could be granted.

                                           I.

      In October 2004, Hyland filed this § 1983 action against Danny L. Kolhage,

Clerk of the Circuit Court of Monroe County, Florida, and Ruth Thurston, a deputy

clerk of the circuit court, alleging violations of his due process rights. Hyland’s

complaint alleged that on February 3, 2004, Judge Wayne Miller, a Florida circuit

court judge, sentenced Hyland to two years probation on a felony “petit theft”

charge. Thurston was the deputy clerk in charge of taking the minutes of the court

that day. Hyland alleged that the original court minutes for the sentence hearing

showed that Judge Miller ordered that Hyland be held in custody until there was a

bed available in the “Keys to Recovery Program,” an in-patient treatment program.

According to Hyland, in April 2004, it was brought to the clerk’s attention that in

order for the court’s sentence regarding the Keys to Recovery Program to be

sufficient, the minutes would have to state “complete Keys to Recovery.”

      Hyland alleged that Thurston illegally altered the minutes to include the



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condition “Complete Keys to Recovery,” which resulted in a special condition of

probation being entered that was not ordered by the sentencing judge. According

to Hyland, no one ever attempted to officially amend or modify the minutes, and

the court never sentenced him to complete the Keys to Recovery program. Hyland

alleged that Thurston “negligently” added the additional condition, but he also

claimed that it was not “just an oversight or a failure to maintain records, but

deliberate, affirmative, operational action, void of judgment or discretion . . . by

private agenda.” His complaint alleged that because of Thurston’s actions, he was

forced to spend time in “illegal restraint,” and the Department of Corrections used

the altered court minutes to imprison him for failure to complete the treatment

program.

      The district court dismissed the suit pursuant to 28 U.S.C. § 1915 for failure

to state a claim. The court concluded that Hyland had failed to allege any personal

wrongdoing by Kolhage, and that public officials in supervisory positions cannot

be held vicariously liable for acts of their subordinates in a § 1983 action. The

court also concluded that Hyland’s claims against Thurston should be dismissed

because she was entitled to qualified immunity and Hyland had failed to allege

deliberate indifference.

      On appeal, this Court affirmed the district court’s dismissal with respect to



                                           3
Kolhage. However, we vacated and remanded the district court’s dismissal of

Hyland’s claims against Thurston because Hyland had alleged in his complaint that

Thurston had acted with deliberate indifference and in bad faith. As a result,

Thurston could not assert qualified immunity as a defense.

      On remand, Hyland filed an amended complaint, repeating the claims

against Thurston and adding additional claims against Kolhage. Hyland’s

amended complaint alleged that in April 2004, he wrote to Kolhage to make him

aware of the alteration of the court minutes and requested that Kolhage withdraw

the altered minutes. According to Hyland, Kolhage did not respond to Hyland and

remained deliberately indifferent to Hyland’s illegal restraint. Hyland also alleged

that Kolhage had a duty to investigate by alleging that if Kolhage had acted

“lawfully and ethically,” then Hyland would not have been injured. Finally,

Hyland alleged that Kolhage had a duty to correct the altered court minutes.

      Kolhage filed a motion to dismiss Hyland’s claims against him, which the

district court granted. The court decided that the amended complaint was still an

attempt to hold Kolhage vicariously liable for Thurston’s actions, which is not

permissible in a § 1983 action.

      Hyland then filed a proposed second amended complaint, along with a

motion for joinder of Judge Miller as a defendant. The complaint was a copy of



                                          4
his first amended complaint with a few additional allegations. Hyland alleged that

Judge Miller had “subversively directed and caused” the unlawful alteration of the

court minutes by directing Thurston to alter the original court minutes to reflect

that Hyland was to complete the Keys to Recovery Program. According to

Hyland, Judge Miller knew that he had not orally pronounced such a condition

when he sentenced Hyland. Hyland alleged that Judge Miller violated his due

process rights by instructing Thurston to alter or amend the court minutes.

Hyland’s complaint further alleged that Judge Miller did not have subject matter

jurisdiction over Hyland’s case when the minutes were amended, so Judge Miller

was not protected by judicial immunity. Hyland sought compensatory and punitive

damages from Judge Miller.

      Hyland also filed a motion to re-join Kolhage as a defendant, arguing that he

had raised a valid § 1983 claim against Kolhage in his second amended complaint.

Specifically, Hyland argued that he had sufficiently alleged that Kolhage had a

duty to investigate his complaints, but remained deliberately indifferent and failed

to do so.

      The district court denied Hyland’s motion to join Judge Miller as a

defendant on the ground that he was entitled to absolute judicial immunity. The

court also denied Hyland’s motion to rejoin Kolhage as a defendant because,



                                          5
despite his insistence to the contrary, Hyland was still attempting to hold Kolhage

liable as a supervisor, which is not a valid basis for a § 1983 action. Moreover,

according to the district court, Hyland pointed to no authority that imposed a duty

on Kolhage to investigate Hyland’s complaints. The district court finally

dismissed the remainder of Hyland’s second amended complaint, taking judicial

notice of Hyland’s state criminal records, and concluding that throughout his state

court proceedings, Hyland had acknowledged that he was sentenced to complete

the Keys to Recovery Program. Therefore, the court concluded that his complaint

was without merit. Hyland timely appealed.

                                            II.

      Hyland first contends that the district court erred by denying his motion to

join Judge Wayne Miller, a Florida circuit court judge, as a defendant because he

was not entitled to judicial immunity when he told Thurston to alter the minutes of

Hyland’s sentencing hearing. Specifically, Hyland argues that Judge Miller is not

entitled to judicial immunity because: (1) Judge Miller’s instruction to Thurston

was not a normal judicial function; (2) the act occurred outside courtroom or

chamber proceedings; (3) no matter involving Hyland was pending before Judge

Miller because the case was already on appeal; and (4) the instruction was simply a

ministerial act, not a discretionary one.



                                            6
      We review the district court’s denial of a motion for joinder only for an

abuse of discretion. Swan v. Ray, 293 F.3d 1252, 1253 (11th Cir. 2002) (citation

omitted). “The district court has broad discretion to join parties or not and that

decision will not be overturned as long as it falls within the district court’s range of

choices.” Id. (citation omitted).

      We review de novo the district court’s dismissal on the basis of judicial

immunity. Smith v. Shook, 237 F.3d 1322, 1325 (11th Cir. 2001). “[J]udicial

immunity is an immunity from suit, not just from ultimate assessment of damages.

Accordingly, judicial immunity is not overcome by allegations of bad faith or

malice, the existence of which ordinarily cannot be resolved without engaging in

discovery and eventual trial.” Mireles v. Waco, 502 U.S. 9, 11, 112 S. Ct. 286, 288

(1991) (citations omitted).

      “The Supreme Court has set forth a two-part test for determining when a

judge is entitled to immunity from money damages liability when sued under

section 1983.” Simmons v. Conger, 86 F.3d 1080, 1084 (11th Cir. 1996). First, in

order to be entitled to immunity, the judge must have dealt with the plaintiff in his

judicial capacity. Id. “[W]hether an act by a judge is a “judicial” one relate to the

nature of the act itself, i.e., whether it is a function normally performed by a judge,

and to the expectations of the parties, i.e., whether they dealt with the judge in his



                                            7
judicial capacity.” Mireles, 502 U.S. at 12, 112 S. Ct. at 288 (quotations and

alteration omitted).

      “If the judge was not dealing with the plaintiff in a judicial capacity, then

there is no immunity. If the judge was dealing with the plaintiff in his judicial

capacity, however, the second part of the test is whether the judge acted in the

‘clear absence of all jurisdiction.’” Simmons, 86 F.3d at 1085 (citations omitted).

“A judge will not be deprived of immunity because the action he took was in error,

was done maliciously, or was in excess of his authority; rather, he will be subject

to liability only when he has acted in the clear absence of all jurisdiction.” Stump

v. Sparkman, 435 U.S. 349, 356–57, 98 S. Ct. 1099, 1105 (1978) (quotation marks

and citation omitted).

      According to his complaint, Hyland was the defendant in a state felony petit

theft prosecution, and Judge Miller was the state circuit court judge who presided

over his sentence hearing and was responsible for pronouncing his sentence on the

charge. Florida state courts have the power to correct errors in sentences,

including mismatches between a written sentence and the earlier orally pronounced

sentence. Fla. R. Crim. P. 3.800; see Simon v. State, 793 So. 2d 980, 981 (Fla. 1st

DCA 2001); Brooks v. State, 793 So. 2d 513, 513 (Fla. 2d DCA 2000).

Accordingly, a judge’s act of altering a written sentence is a judicial act. Even



                                           8
assuming, as we are required to do at this stage in the proceedings, that inserting

“Complete Keys to Recovery” was erroneous, Judge Miller’s instructions to

Thurston to amend the minutes to Hyland’s sentence hearing, by its nature, was

still a judicial act. See Mireles, 502 U.S. at 12, 112 S. Ct. at 288 (“[T]he relevant

inquiry is the ‘nature’ and ‘function’ of the act, not the ‘act itself.’” (citation

omitted)).

       Moreover, under Fla. Stat. § 26.012(2)(d), circuit courts have “exclusive

original jurisdiction” over all felony offenses. As the presiding judge, Judge Miller

had jurisdiction over Hyland’s sentence hearing and all matters related to it. Fla.

R. Crim. P. 3.800(b)(2) provides that a circuit judge has jurisdiction to rule on a

party’s motion to correct a sentencing error even when an appeal in the case is

pending. This shows that Hyland’s appeal of his case did not, as he argues, divest

the circuit court of all jurisdiction over his sentence. As a result, Judge Miller was

not acting in the “clear absence of all jurisdiction” when he directed Thurston to

alter the minutes, so he “will not be deprived of immunity because [Hyland alleges

that] the action he took was in error, was done maliciously, or was in excess of his

authority.” Stump, 435 U.S. at 356, 98 S. Ct. at 1105.

       Because Judge Miller’s actions were taken within his judicial capacity and

he did not act in the absence of all jurisdiction, he was entitled to judicial



                                             9
immunity, and the district court did not abuse its discretion when it denied

Hyland’s motion to join Judge Miller as a defendant.

                                         III.

      Hyland next contends that the district court abused its discretion by denying

his motion for re-joinder of Kolhage as a defendant because his claim against

Kolhage was not one involving respondeat superior or vicarious liability. Instead,

Hyland argues that his claim was based on Kolhage’s failure to investigate the

allegation that the minutes had been altered. According to Hyland, the district

court erred by concluding that Kolhage did not have a constitutional duty to

investigate the allegations because Kolhage took an oath to uphold the

Constitution.

      As we mentioned above, we review the district court’s denial of a motion for

joinder only for an abuse of discretion. Swan, 293 F.3d at 1253. The district court

denied re-joinder of Kolhage as a defendant because it concluded that vicarious

liability is not the basis of a § 1983 claim, and Kolhage had no duty to investigate

Hyland’s complaints. Nonetheless, “we may affirm the district court’s judgment

‘on any ground that finds support in the record.’” Gaston v. Bellingrath Gardens &

Home, Inc., 167 F.3d 1361, 1363 n.1 (11th Cir. 1999) (quoting Jaffke v. Dunham,

352 U.S. 280, 281, 77 S. Ct. 307, 308 (1957)).



                                          10
      Under the law of the case doctrine, both district courts and appellate courts

generally are bound by a prior appellate decision in the same case. Alphamed, Inc.

v. B. Braun Med., Inc., 367 F.3d 1280, 1285–86 (11th Cir. 2004). The doctrine

operates to preclude courts from revisiting issues that were decided explicitly or by

necessary implication in a prior appeal. Luckey v. Miller, 929 F.2d 618, 621 (11th

Cir. 1991). There are three exceptions to the law of the case doctrine where we

would not be bound by our prior decisions in a case: “(1) a subsequent trial

produces substantially different evidence[;] (2) controlling authority has since

made a contrary decision of law applicable to that issue[;] or (3) the

law-of-the-case is clearly erroneous and will work manifest injustice if not

reconsidered.” Culpepper v. Irwin Mortg. Corp., 491 F.3d 1260, 1271 (11th Cir.

2007) (citation omitted).

      We have already held that Kolhage could not be held liable for the actions of

his subordinate, Thurston, under a theory of vicarious liability or respondeat

superior, see Hyland v. Florida, 158 Fed. Appx. 194, 196 (11th Cir. 2005)

(unpublished), and Hyland does not argue that one of the exceptions to the law of

the case doctrine applies. Therefore, to the extent that Hyland’s second amended

complaint alleges that Kolhage should be held vicariously liable for Thurston’s

conduct, that argument is barred by the law of the case. See Alphamed, Inc., 367



                                          11
F.3d at 1285–86.

      Moreover, to the extent that Hyland seeks to hold Kolhage liable for failing

to investigate Thurston’s alleged alteration of the minutes, this argument rests on a

theory of supervisory liability. “Supervisory liability occurs either when the

supervisor personally participates in the alleged constitutional violation or when

there is a causal connection between actions of the supervising official and the

alleged constitutional deprivation.” Brown v. Crawford, 906 F.2d 667, 671 (11th

Cir. 1990). “The causal connection can be established when a history of

widespread abuse puts the responsible supervisor on notice of the need to correct

the alleged deprivation, and he fails to do so. The deprivations that constitute

widespread abuse sufficient to notify the supervising official must be obvious,

flagrant, rampant and of continued duration, rather than isolated occurrences.” Id.

(citations omitted).

      Hyland has not alleged that Kolhage personally participated in the alteration

of the minutes, or that Thurston’s alteration of the minutes was any more than an

isolated occurrence so that Kolhage should be held liable in a supervisory capacity

for Thurston’s conduct. Therefore, even if the allegations in his complaint are not

barred by the law of the case, Hyland has failed to state a claim against Kolhage.

See Brown, 906 F.2d at 671. The district court did not abuse its discretion by



                                          12
denying re-joinder of Kolhage as a defendant.

                                             IV.

       Hyland finally contends that the district court erred by dismissing his

complaint for failure to state a claim upon which relief could be granted because he

raised constitutional claims against Thurston, Judge Miller, and Kolhage. Hyland

further argues that the district court erroneously found that he agreed that

Thurston’s alteration of the court records was done upon the express direction of

Judge Miller. According to Hyland, he stated a cognizable claim under § 1983

because he demonstrated a causal connection between the defendants’ actions and

his unlawful restraint in the Keys to Recovery Program.

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

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), using the same standards that govern

Fed. R. Civ. P. 12(b)(6) dismissals and viewing the allegations in the complaint as

true. See Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). As

mentioned above, we may affirm a district court decision on any ground supported

by the record. Gaston, 167 F.3d at 1363 n.1.

       Court clerks enjoy a “narrower ambit of immunity than judges.” Tarter v.

Hury, 646 F.2d 1010, 1013 (5th Cir. June 1981).1 Court clerks “have absolute


       1
         In our en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981), we adopted as binding precedent all decisions of the former Fifth Circuit handed down

                                              13
immunity from actions for damages arising from acts they are specifically required

to do under court order or at a judge’s direction, and only qualified immunity from

all other actions for damages.” Id. “Absolute immunity from damages actions

applies, only in a narrow range of actions, for clerks of court acting in a nonroutine

manner under command of court decrees or under explicit instructions of a judge.

Damages will not be awarded for a clerk’s actions of this type even if in bad faith

or with malice.” Williams v. Wood, 612 F.2d 982, 985 (5th Cir. 1980).

       As we mentioned above, the district court properly denied joinder of

Kolhage and Judge Miller as defendants to this case. The only issue remaining is

whether the court erred by dismissing Hyland’s claims against Thurston. Hyland’s

second amended complaint alleges that Judge Miller “instruct[ed] Ruth Thurston,

Deputy Clerk, Monroe County Clerk’s Office, to insert the words “Complete Keys

to Recovery” in the “other” section of [Hyland’s] court minutes . . . .” His

complaint further alleges that Judge Miller instructed Thurston “not to mark the

(then) altered court minutes as ‘Amended’ and not to notice the parties as to the

alteration and not to serve copies” of the amended minutes on the parties.

       Taking these allegations in Hyland’s complaint as true, it is difficult to

imagine a clearer scenario of a clerk acting “under explicit instructions of a judge.”



before October 1, 1981.

                                           14
See Tarter, 646 F.2d at 1012. Moreover, Hyland’s complaint also alleges that this

was not a routine action by Thurston, because Judge Miller explicitly requested

that Thurston change the minutes that she had transcribed at Hyland’s sentence

hearing without notification to the parties. Thurston is therefore entitled to

absolute immunity from a suit for damages. See id. Accordingly, the district court

did not err in dismissing Hyland’s complaint for failure to state a claim for which

relief could be granted.

      AFFIRMED.




                                          15
