[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-11949

Non-Argument Calendar

________________________

D.C. Docket No. 6:19-cv-00883-CEM-GJK

HENRY L. MCCONE,

Plaintiff-Appellant,

 versus

JANET C. THORPE,

individually and in her official 

capacities,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(October 29, 2020)

Before WILLIAM PRYOR, Chief Judge, NEWSOM and ANDERSON, Circuit 

Judges.

PER CURIAM: 

USCA11 Case: 20-11949 Date Filed: 10/29/2020 Page: 1 of 4
2

Henry L. McCone appeals the dismissal of his complaint against the 

Honorable Janet Thorpe of the Ninth Judicial Circuit of Orange County, Florida. 

42 U.S.C. § 1983. McCone complained that Judge Thorpe’s conduct during a 

pretrial hearing and her decisions to stay his civil action pending his appeal and 

later refusal to lift the stay violated his rights of access to the courts and to due 

process under the U.S. Constitution and the Florida Constitution. McCone sought a 

judgment declaring the judge’s actions unconstitutional and enjoining the judge 

from “engaging in such unconstitutional and unlawful acts” and compelling her “to

develop policies and procedures for preventing the recurrence of any such 

unconstitutional and unlawful acts.” The district court dismissed McCone’s request 

for declaratory relief based on absolute judicial immunity and his request for 

injunctive relief for failure to state a claim. McCone filed a motion to alter or to 

reconsider the judgment, which the district court denied. Fed. R. Civ. P. 59(e), 

60(b). We affirm.

McCone waived his right to challenge the dismissal of his request for 

declaratory relief. As the district court stated in its order of dismissal, when a party 

fails to object to the findings or recommendations in a magistrate judge’s report, he 

“waives the right to challenge on appeal the district court’s order based on 

unobjected-to factual and legal conclusions if the party was informed of the time 

period for objecting and the consequences on appeal for failing to object.” 11th 

USCA11 Case: 20-11949 Date Filed: 10/29/2020 Page: 2 of 4
3

Cir. R. 3-1. McCone objected to the magistrate judge’s report only on the ground 

that judicial immunity did not apply to his request for prospective equitable relief. 

So McCone waived any challenge he could have made to the determinations that 

all Judge Thorpe’s acts about which McCone complained were judicial functions 

performed in his civil case, see Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir.

2000), and that judicial immunity barred his request for retrospective equitable 

relief—that is, a judgment declaring that the judge’s earlier actions violated federal 

and state law, see Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336–37 

(11th Cir. 1999).

The district court correctly dismissed McCone’s request for prospective

injunctive relief. “A judge enjoys absolute immunity from suit for judicial acts 

performed within the jurisdiction of h[er] court,” McCullough v. Finley, 907 F.3d 

1324, 1330 (11th Cir. 2018), “regardless of whether [s]he made a mistake, acted 

maliciously, or exceeded h[er] authority,” id. at 1331. Immunity applies to most

suits brought for injunctive relief for “an act or omission taken in [a judicial] 

officer’s judicial capacity.” 42 U.S.C. § 1983. Section 1983 states that “injunctive 

relief shall not be granted unless a declaratory decree was violated or declaratory 

relief was unavailable.” Id. McCone alleged no facts entitling him to an injunction 

because, in the words of the district court, he did not allege that “Judge Thorpe . . . 

violated a declaratory degree []or . . . that declaratory relief is unavailable to him.”

USCA11 Case: 20-11949 Date Filed: 10/29/2020 Page: 3 of 4
4

Moreover, as the district court mentioned, McCone had an adequate remedy at law. 

The state court had lifted the stay in his case, and he could appeal any decision or 

challenge it in a petition for an extraordinary writ.

McCone argues that the district court erred by failing to treat Judge Thorpe’s 

motion to dismiss as a motion for summary judgment because she attached a copy 

of the state court docket to her filing, but we disagree. A district court may take 

judicial notice of public records without converting a motion to dismiss into a 

motion for summary judgment. See Fed. R. Evid. 201(b); Bryant v. Avado Brands, 

Inc., 187 F.3d 1271, 1278–80 (11th Cir. 1999).

The district court also did not abuse its discretion when it denied McCone’s 

post-judgment motion. McCone identified no new evidence or manifest error in the 

ruling that required the district court to alter or to reconsider its judgment. See Fed. 

R. Civ. P. 59(e), 60(b); Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). His 

motion consisted of arguments concerning the merits of his action in the state court

and his request for injunctive relief. See Michael Linet, Inc. v. Vill. of Wellington, 

408 F.3d 757, 763 (11th Cir. 2005) (explaining that a motion for reconsideration 

cannot be used “to relitigate old matters, raise argument or present evidence that 

could have been raised prior to the entry of judgment”).

We AFFIRM the dismissal of McCone’s complaint.

USCA11 Case: 20-11949 Date Filed: 10/29/2020 Page: 4 of 4