Charles Junior Barber v. Denis A. Vilchez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-13850
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D.C. Docket No. 3:18-cv-01504-MCR-CJK
CHARLES JUNIOR BARBER,
Plaintiff - Appellant,
versus
DENIS A. VILCHEZ,
Doctor,
Defendant - Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(May 7, 2021)
Before WILSON, ROSENBAUM, and HULL, Circuit Judges.
PER CURIAM:
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While incarcerated at the Walton Correctional Institute (“WCI”), Plaintiff-
Appellant Charles Barber encountered mold, and his hand became infected. Barber
claims Defendant-Appellee Denis Vilchez, who was employed as a doctor at the
WCI, provided insufficient medical care for the bacterial infection, which then
caused Barber further injury and pain. Barber filed a complaint under 42 U.S.C.
§ 1983, alleging Dr. Vilchez violated his Eighth Amendment rights through his
deliberate indifference to Barber’s serious medical needs. A magistrate judge issued
a report and recommendation (“R&R”) that found Barber’s complaint to be both
time-barred and an abuse of the judicial process, and the district court adopted that
R&R. It then dismissed the case under 28 U.S.C. § 1915(e)(2)(B)(i) and §
1915(e)(2)(B)(ii).
In this appeal, Barber challenges both grounds for dismissal. Concerning the
finding that his claim was barred by the applicable statute of limitations, Barber
asserts this Court should recognize the doctrine of equitable tolling in civil-rights
cases brought by prisoners who are required to exhaust their administrative remedies
under the Prison Litigation Reform Act, 42 U.S.C. § 1997e. In Barber’s view, if we
toll the period during which he pursued these administrative remedies and add that
time to the relevant statute of limitations, his complaint was timely filed.
As for the district court’s finding that Barber failed to provide truthful answers
to questions on the Civil Rights Complaint Form and that he abused the judicial
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process as a result, Barber contends the district court failed to make the requisite
findings of bad-faith litigiousness or manipulative tactics that would warrant
dismissal of his lawsuit. He also claims the district court did not make clear that it
had considered lesser sanctions before entering the dismissal with prejudice.
We decline to address these arguments because Barber waived them by failing
to object to the R&R on these grounds. We recognize that Barber filed a “Request
Motion to Change Venue, Continuous and Reinstate Civil Complaint” in response
to the R&R, and given Barber’s pro se status, we liberally construe that filing as an
objection to the R&R. See Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir.
2017) (per curiam) (acknowledging that pro se pleadings are held to a less stringent
standard and are liberally construed). But nowhere in that “objection” did Barber
advance his theory that equitable tolling should toll the statutory period while Barber
was exhausting his administrative remedies or that the district court failed to make
sufficient findings to dismiss the complaint as an abuse of the judicial process.
Instead, Barber merely referred back to an earlier case he had filed against Dr.
Vilchez, claiming that lawsuit should not have been dismissed for failure to timely
effect service of process.
We will not consider an issue raised for the first time on appeal. Access Now,
Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). Because Barber
failed in the district court to raise the issues and arguments now presented, we do
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not consider them. Id. Though this general rule has limited exceptions, we decline
on this record to exercise our discretion and consider Barber’s newly minted
arguments in the first instance on appeal.
Accordingly, the district court’s dismissal of Barber’s Complaint is
AFFIRMED.
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