                                                     [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                 FILED
                                                     U.S. COURT OF APPEALS
                            No. 05-11476               ELEVENTH CIRCUIT
                                                       NOVEMBER 29, 2005
                       Non-Argument Calendar
                                                        THOMAS K. KAHN
                      ________________________
                                                             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
                     _________________________

                           (November 29, 2005)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      Florida prisoner Thomas G. Hyland, filing pro se, appeals the district court’s

dismissal of his 42 U.S.C. § 1983 action against Monroe County Clerk of Court

Danny L. Kolhage and Deputy Clerk Ruth Thurston. The district court found the

complaint failed to state a claim, and was further barred by Heck v. Humphrey, 114

S. Ct. 2364 (1994). We affirm the district court’s dismissal of Hyland’s action

against Kolhage, but vacate and remand the dismissal of Hyland’s action against

Thurston.

                                I. BACKGROUND

      Hyland’s complaint alleged that on February 3, 2004, a state judge sentenced

him to two years’ probation for a felony petit theft. Thurston took the court

minutes at sentencing. Hyland claimed the original court minutes, which he

attached to the complaint, indicated the sentencing judge found Hyland should be

held in custody until there was a bed available in the “Keys to Recovery Program.”

Hyland alleged that in April 2004, an altered set of minutes was drafted, in which

the phrase “complete Keys to Recovery” was written in the “other” notation

section as a special condition of probation. Hyland claimed Thurston illegally

altered the minutes, which resulted in a condition of probation being entered when

it was not so ordered by the sentencing judge. He argued Thurston “negligently”

added the additional condition, but he also claimed it was not “just an oversight or



                                          2
a failure to maintain records, but deliberate, affirmative, operational action, void of

judgment or discretion . . . by private agenda.” Hyland claimed Thurston’s actions

amounted to “malfeasance of bad faith.” He argued 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 incarcerate him for failure to

complete the treatment program. In his handwritten objections to the magistrate’s

Report & Recommendation (R&R), Hyland attached the court minutes showing the

state court granted his motion to dismiss a violation of condition nine, the “Keys to

Recovery” condition.

       On appeal, Hyland argues Kolhage (1) was liable for Thurston’s actions

because Thurston acted outside the legal scope of her employment, and (2) was

deliberately indifferent to his deputy clerk’s unlawful alteration of court minutes

even after Hyland had notified him of the alteration.1 Hyland also claims Thurston

should not enjoy qualified immunity for her deliberate acts, the unlawful alteration

of court minutes.




       1
          We have repeatedly held we will not consider an issue raised for the first time on
appeal. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). Thus,
we will not consider Hyland’s argument not raised before the district court—that Kolhage acted
with deliberate indifference. Additionally, we will not consider documents that Hyland
submitted for the first time on appeal and did not present to the district court—the Probation
Officer’s affidavit and Hyland’s motion to dismiss the petition regarding probation condition
nine.

                                               3
                                 II. DISCUSSION

      “A district court's sua sponte dismissal for failure to state a claim under [28

U.S.C.] § 1915(e)(2)(B)(ii) is reviewed de novo, viewing the allegations in the

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

“The language of section 1915(e)(2)(B)(ii) tracks the language of Federal Rule of

Civil Procedure 12(b)(6), and we will apply Rule 12(b)(6) standards in reviewing

dismissals under section 1915(e)(2)(B)(ii).” Mitchell v. Farcass, 112 F.3d 1483,

1490 (11th Cir. 1997).

      “[A] pro se complaint, however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers and can only be

dismissed for failure to state a claim if it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would entitle him to relief.”

Estelle v. Gamble, 97 S. Ct. 285, 292 (1976) (internal quotations omitted). When

issues are raised for the first time in objections to the magistrate’s report, we

review them since the district court had an opportunity to address the merits of the

contentions. United States v. Puett, 735 F.2d 1331, 1334 n.2 (11th Cir. 1984). “A

section 1983 claim is conditioned on two essential elements: first, the conduct

complained of must have been committed by a person acting under color of state

law; second, this conduct must have deprived the plaintiff of rights, privileges, or



                                            4
immunities secured by the Constitution or the laws of the United States.”

Whitehorn v. Harrelson, 758 F.2d 1416, 1419 (11th Cir. 1985).

       “It is well established in this circuit that supervisory officials are not liable

under § 1983 for the unconstitutional acts of their subordinates on the basis of

respondeat superior or vicarious liability.” Hartley v. Parnell, 193 F.3d 1263,

1269 (11th Cir. 1999) (internal quotations omitted). A clerk of a state court

performing routine duties such as entering an order and notifying parties enjoys

qualified immunity from damages actions for injuries caused by that conduct. See

Williams v. Wood, 612 F.2d 982, 984 (5th Cir. 1980)2 (discussing the immunity of

federal clerks drawing an analogy from the immunity of state clerks). In Williams,

the court found a complaint alleged facts that, if true, would overcome the clerk's

qualified immunity and justify relief where the complaint alleged a deputy clerk of

a federal district court (1) failed to notify the plaintiff of the entry of an order on

plaintiff's motion and then told the plaintiff the order had not yet been rendered,

(2) promised to contact the plaintiff by telephone when the order was rendered, but

failed to do so, and (3) acted in bad faith and with malice. See id. at 986.




       2
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.

                                               5
        The district court did not err by dismissing Hyland’s complaint for failure to

state a claim as to Kolhage. Kolhage cannot be held liable on the basis of

respondeat superior or vicarious liability for the actions of his subordinate,

Thurston. See Hartley, 193 F.3d at 1269. However, taking the allegations in

Hyland’s complaint as true, Thurston is not immune from the suit. Even though

Hyland’s complaint stated Thurston “negligently” added the Keys to Recovery

notation, he also claimed her actions were not “just an oversight or a failure to

maintain records, but deliberate, affirmative, operational action, void of judgment

or discretion . . . by private agenda.” Hyland claimed Thurston’s actions amounted

to “malfeasance of bad faith.” Thus, Hyland was alleging Thurston was not only

negligent but was acting with deliberate indifference. See Estelle, 97 S. Ct. at 292;

Williams, 612 F.2d at 984–85. Accordingly, Thurston is not immune from this

suit.

        Next, the district court erred by dismissing Hyland’s complaint based on the

holding in Heck. In Heck, 114 S. Ct. at 2372, the Supreme Court held “to recover

damages for an allegedly unconstitutional conviction or imprisonment, or for other

harm caused by actions whose unlawfulness would render a conviction or sentence

invalid, a § 1983 plaintiff must prove that the conviction or sentence has been

reversed on direct appeal, expunged by executive order, declared invalid by a state



                                           6
tribunal authorized to make such determination, or called into question by a federal

court’s issuance of a writ of habeas corpus.” If this type of action is brought prior

to the invalidation of the challenged conviction or sentence, it must be dismissed as

premature. Id.

      Because the state court has already granted Hyland’s motion to dismiss the

charge that he violated condition nine, habeas corpus relief is no longer available to

him. Id. Thus, Hyland’s claim is cognizable under § 1983. It is understandable

the magistrate recommended the dismissal of Hyland’s claim under Heck, because

in his complaint, Hyland did not allege the state court had granted his motion to

dismiss the petition as to violation of condition nine. However, in his handwritten

objections to the R&R, Hyland submitted the court minutes showing the state court

had granted his motion to dismiss with regard to violation nine., “issue of Keys to

Recovery.” The district court had an opportunity to address the merits of this fact

but failed to do so. See Puett, 735 F.2d at 1334 n.2. Thus, we vacate and remand

with regard to this issue.

                                III. CONCLUSION

      The district court did not err in err in dismissing the suit as to Kolhage

because supervisory officials are not liable under 42 U.S.C. § 1983 for the

unconstitutional acts of their subordinates on the basis of respondeat superior or



                                           7
vicarious liability. We vacate and remand the dismissal of Hyland’s action against

Thurston, however, because taking the allegations in his complaint as true,

Thurston does not enjoy qualified immunity for her deliberate acts. Additionally,

Heck is inapplicable to this case and does not bar Hyland’s claims.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




                                         8
