Henry McCone v. John Marshall Kest, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13667
Non-Argument Calendar
____________________
HENRY MCCONE,
Plaintiff-Appellant,
versus
JOHN MARSHALL KEST,
individually and in his official capacities,
KEITH A. CARSTEN,
individually and in his official capacities,
SANDRA WILLIAMS,
individually and in her official capacities,
PITNEY BOWES, INC,
EXELA ENTERPRISE SOLUTIONS, INC.,
f.k.a. Novitex Enterprise Solutions, Inc.,
USCA11 Case: 21-13667 Date Filed: 05/26/2022 Page: 1 of 5

-- 1 of 5 --

2 Opinion of the Court 21-13667
f.k.a. Pitney Bowes Management Services, Inc., et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:20-cv-01946-CEM-EJK
____________________
Before JORDAN, ROSENBAUM, and GRANT, Circuit Court
Judges.
PER CURIAM:
In 2014, Henry McCone filed an action in Florida circuit
court against Pitney Bowes and Elexa Enterprise Solutions, alleging
claims of sex discrimination under Florida law. Seven years later,
in 2021, Mr. McCone filed a federal action for declaratory and in-
junctive relief against two Florida circuit judges, the clerk of court
for Florida’s Fifth District Court of Appeal, Pitney Bowes, and
Elexa Enterprises. In his federal action, Mr. McCone alleged claims
under 42 U.S.C. § 1983 and Article I, §§ 9 & 21 of the Florida Con-
stitution for violations of his right of access to the courts and his
right to due process. All of the claims were based on events or rul-
ings in his pending Florida circuit court action. Mr. McCone re-
quested, among other things, a declaration that a state-court stay
USCA11 Case: 21-13667 Date Filed: 05/26/2022 Page: 2 of 5

-- 2 of 5 --

21-13667 Opinion of the Court 3
was unconstitutional, an injunction ordering one of the state-court
judges not to engage in certain conduct, a declaration that certain
judicial rulings were unconstitutional, and a declaration that the
Fifth District and its clerk had acted unconstitutionally.
A magistrate judge recommended that McCone’s claims be
dismissed with prejudice for various reasons.
See D.E. 57 at 4-9.
Mr. McCone filed objections, but the district court overruled the
objections and issued an order adopting the magistrate judge’s re-
port and dismissing the claims with prejudice.
See D.E. 61 at 4-10.
The magistrate judge and the district court also denied Mr.
McCone’s post-dismissal motions for disqualification/recusal and
to alter and amend the judgment.
See D.E. 65 & 66.
On appeal, Mr. McCone—who is proceeding
pro se—raises
a number of challenges to the magistrate judge’s report and the dis-
trict court’s order of dismissal. He argues (1) that the magistrate
judge’s report contained several incorrect statements about his
complaint; (2) that the magistrate judge’s report misapplied
Younger v. Harris, 401 U.S. 37 (1971); (3) that the magistrate
judge’s report incorrectly concluded that the complaint failed to al-
lege an inadequate remedy at law; and (4) that the district court
erred in dismissing the complaint with prejudice.
With respect to the dismissal of the complaint, the problem
for Mr. McCone is that he does not challenge all of the grounds
provided by the magistrate judge and adopted by the district court.
For example, the magistrate judge explained in his report that even
if
Younger abstention did not apply, Mr. McCone’s claims failed on
USCA11 Case: 21-13667 Date Filed: 05/26/2022 Page: 3 of 5

-- 3 of 5 --

4 Opinion of the Court 21-13667
the merits. The official capacity claims against the state circuit
judges and the Fifth District clerk for retrospective declaratory re-
lief were barred by the Eleventh Amendment, and the claims for
prospective injunctive relief were barred by absolute judicial im-
munity.
See D.E. 57 at 6-7. The claims against Pitney Bowes and
Elexa Enterprises failed because nothing in the complaint pertained
to those entities.
See id.
Mr. McCone’s brief does not address any of these grounds
for dismissal. As a result, we must for the most part affirm.
See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.
2014) (“When an appellant fails to challenge properly on appeal
one of the grounds on which the district court based its judgment,
he is deemed to have abandoned any challenge at that ground, and
it follows that the judgment is due to be affirmed.”).
The one exception is the claim for prospective declaratory
relief against the state circuit judges and the Fifth District clerk. Mr.
McCone argues that the magistrate judge and the district court
erred in ruling that his complaint failed to alleged an inadequate
remedy at law.
See D.E. 57 at 7; Appellant's Br. at 19-20. That
argument, however, is not persuasive. Although Mr. McCone did
allege in conclusory fashion in his complaint that he lacked an ade-
quate remedy at law, those allegations were based on the denial of
relief by the Florida courts, and not on the absence of legal reme-
dies or recourse.
See D.E. 25 at §§ 57 (dismissal without prejudice
of a certiorari petition), 67 (Fifth District’s denial of a certiorari pe-
tition), 84 (Fifth District’s denial of a mandamus petition), 146
USCA11 Case: 21-13667 Date Filed: 05/26/2022 Page: 4 of 5

-- 4 of 5 --

21-13667 Opinion of the Court 5
(Fifth District’s denial of a prohibition petition), 170 (Florida circuit
court’s issuance of a stay), 186 (circuit judge’s discovery ruling), 194
(circuit court’s delayed ruling on sanctions motion), 202 (incorpo-
rating ¶ 126-Fifth District’s issuance of an order to show cause), and
209 (circuit court’s order requiring the filing of courtesy copies).
In assessing whether an adequate remedy at law exists, “the
only pertinent inquiry is whether the state proceedings afford an
adequate opportunity to raise the constitutional claims.”
Moore v.
Sims, 442 U.S. 415, 430 (1979). Because an adequate remedy at law
does not guarantee “a favorable result in the state forum.”
Winn
v. Cook, 945 F.3d 1253, 1258 (10t Cir. 2019), Mr. McCone’s allega-
tions are insufficient.
All of this leaves Mr. McCone’s contention that the magis-
trate judge and the district court erred in denying his post-judg-
ment motions for disqualification/recusal. Assuming that Mr.
McCone’s post-judgment motions were timely, we discern no er-
ror in their denial. Mr. McCone requested disqualification/recusal
based on alleged mistakes committed by the magistrate judge and
the district court in ruling on the motions to dismiss his complaint.
But “judicial rulings alone almost never constitute a valid basis for
a bias or partiality motion,”
Liteky v. United States, 510 U.S. 540,
555 (1994), and we see nothing in the record which would require
deviation from this general rule.
AFFIRMED.
USCA11 Case: 21-13667 Date Filed: 05/26/2022 Page: 5 of 5

-- 5 of 5 --