Michael Wayne Hill v. Escambia County Sheriff's Office

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10631
Non-Argument Calendar
____________________
MICHAEL WAYNE HILL,
Plaintiff-Appellant,
versus
ESCAMBIA COUNTY SHERIFF'S OFFICE,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:20-cv-05814-LC-HTC
____________________
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2 Opinion of the Court 21-10631
Before WILSON, L AGOA , and BRASHER , Circuit Judges.
PER CURIAM:
Michael Wayne Hill, proceeding
pro se, appeals following
the district court’s dismissal of his 42 U.S.C. § 1983 complaint for
“spoilation of evidence” against, among others, the Escambia
County Sheriff’s Office (the “Sheriff’s Office”).1 For the following
reasons, we affirm the district court's dismissal of Hill’s complaint
and denial of his post-judgment filings and dismiss the portion of
his appeal over which we have no jurisdiction.
I.
In his complaint, Hill alleged that he went to the Sheriff’s
Office in an attempt to gather “important documents,” but he was
“finding deviations of reality,” preventing him from obtaining his
documents. Although Hill paid the requisite filing fee, a magistrate
judge, prior to service of process, screened Hill’s complaint
sua
sponte and issued a report recommending that it be dismissed. The
magistrate judge found that Hill’s complaint was “patently frivo-
lous,” lacked “legal or factual support or basis in reality,” failed to
plead a viable claim of action, and could not be cured by amend-
ment. Hill filed largely nonresponsive objections to the magistrate
1 Hill also named the Florida Governor’s Office and the United States Depart-
ment of Justice as defendants in his complaint. To the extent they are proper
parties to this action, we conclude that Hill’s claims against them fail as well
and merit no further discussion.
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21-10631 Opinion of the Court 3
judge’s report. Accordingly, the district court adopted the report,
overruled Hill’s objections, and dismissed his complaint without
prejudice and entered a judgment to this effect.
Following the dismissal, Hill filed several post-judgment
motions and asserted, among other things, a right to amend or cor-
rect his complaint, the district court denied certain post-judgment
motions Hill filed as moot, noting that Hill’s complaint was dis-
missed and the case was closed. This appeal ensued.
II.
We normally review a district court’s dismissal for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6)
de
novo.
Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1056–
57 (11th Cir. 2007). While our standard of review for the district
court’s
sua sponte dismissal pursuant to Rule 12(b)(6) is “less clear,”
we have nonetheless applied
de novo review when such dismissal
is not prohibited.
See id. at 1057.
When a party fails to object to a magistrate judge’s findings
or recommendations contained in a report and recommendation,
he “waives the right to challenge on appeal the district court’s or-
der based on unobjected-to factual and legal conclusions.” 11th
Cir. R. 3-1. Under the circumstances, we may review a claim on
appeal only “for plain error if necessary in the interests of justice.”
Id. We also review the denial of a motion for reconsideration for
abuse of discretion.
United States v. Simms, 385 F.3d 1347, 1356
(11th Cir. 2004). We may affirm a district court’s judgment on any
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4 Opinion of the Court 21-10631
basis supported by the record.
Big Top Koolers, Inc. v. Circus-Man
Snacks, Inc., 528 F.3d 839, 844 (11th Cir. 2008).
While we liberally construe
pro se pleadings, issues not
briefed on appeal are deemed abandoned.
Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008). An appellant abandons a claim by:
(1) making only passing reference to it; (2) raising it in a perfunctory
manner without supporting arguments and authority; (3) referring
to it only in the “statement of the case” or “summary of the argu-
ment”; or (4) the references to the issue are mere background to
the appellant’s main arguments.
Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 681–82 (11th Cir. 2014). Further, if the district
court’s order rested on two or more independent, alternative
grounds, the appellant must challenge all of the grounds to succeed
on appeal.
Id. at 680. Thus, “[w]hen 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
of that ground, and it follows that the judgment is due to be af-
firmed.”
Id.
III.
On appeal, Hill argues that the district court erred in dismiss-
ing his complaint without first giving him a chance to amend it.2
2 During the pendency of this appeal, Hill filed an additional post-judgment
motion in the district court, which the district court denied. Hill, however,
did not file a new notice of appeal designating that denial. Therefore, we
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21-10631 Opinion of the Court 5
We also note that, during the course of his filings, Hill has asserted
a violation of his rights under: (1) the Violent Crime Control and
Law Enforcement Act of 1994, codified in relevant part at 18 U.S.C.
§ 4042; (2) the Fourth Amendment of the United States Constitu-
tion; and (3) 18 U.S.C. § 1001. We set forth the relevant legal stand-
ards before addressing these issues.
We prohibit
sua sponte dismissals for failure to state a claim
when: (1) the defendant has not answered and the plaintiff still had
the right to amend pursuant to Federal Rule of Civil Procedure 15;
(2) the plaintiff brought his claim in good faith; and (3) the district
court failed to provide the plaintiff notice of its intent to dismiss the
complaint or offer the plaintiff an opportunity to respond.
Am.
United, 480 F.3d at 1057. However, “[t]here is an exception to [the]
general rule against dismissal without notice if the complaint is pa-
tently frivolous or if ‘reversal . . . would be futile.’”
Tazoe v. Air-
bus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011) (quoting
Byrne v.
Nezhat, 261 F.3d 1075, 1127 n.99 (11th Cir. 2001)).
We have held that “[w]here a more carefully drafted com-
plaint might state a claim, a plaintiff must be given at least one
chance to amend the complaint before the district court dismisses
the action
with prejudice.”
Bank v. Pitt, 928 F. 2d 1108, 1112 (11th
Cir. 1991) (emphasis added),
overruled in part by Wagner v. Dae-
woo Heavy Indus. Am. Corp., 314 F.3d 541 (11th Cir. 2002) (
en
dismiss in part the instant appeal for lack of jurisdiction to the extent Hill seeks
to challenge that ruling.
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6 Opinion of the Court 21-10631
banc);
accord Silberman v. Mia. Dade Transit, 927 F.3d 1123, 1132
(11th Cir. 2019). However, the court need not grant leave to
amend the complaint when further amendment would be futile.
Silberman, 927 F.3d at 1133.
“In order to prevail on a civil rights action under § 1983, a
plaintiff must show that he was deprived of a federal right by a per-
son acting under color of state law.”
Griffin v. City of Opa-Locka,
261 F.3d 1295, 1303 (11th Cir. 2001). Mere negligence, however, is
not enough to establish liability under § 1983.
See Estelle v. Gam-
ble, 429 U.S. 97, 106 (1976). Likewise,
respondeat superior cannot
serve as the basis for liability, even if a defendant has employed a
tortfeasor.
See Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658,
691 (1978). Municipalities and other governmental units are in-
cluded among “persons” to whom § 1983 applies.
Id. at 690. How-
ever, in the context of county departments, the question hinges on
whether such department is a legal entity subject to suit.
Dean v.
Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). Generally, sheriff’s
departments are not considered legal entities subject to suit, but
that determination is dictated by state law.
Id. Under Florida law,
police departments lack the legal capacity to be sued.
See Fla. City
Police Dep’t v. Corcoran, 661 So. 2d 409, 410 (Fla. Dist. Ct. App.
1995). However, individual county sheriffs or officers are persons
subject to suit in their individual capacities under § 1983.
See Dean,
951 F.2d at 1215 n.5.
The Violent Crime Control and Law Enforcement Act of
1994, codified in relevant part at 18 U.S.C. § 4042, directs the
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21-10631 Opinion of the Court 7
Director of Federal Bureau of Prisons to give written notice of the
release or change of residence of a federal prisoner to the chief law
enforcement officer of the State and of the local jurisdiction in
which the prisoner will reside. 18 U.S.C. § 4042(b). Notice con-
cerning a change of residence following release shall be provided
by the probation officer responsible for the supervision of the re-
leased prisoner, or in a manner specified by the Director of the Ad-
ministrative Office of the United States Courts.
Id. Nevertheless,
the law does not expressly provide individuals with a private right
of action in the event that this does not occur. Section 4042(c)(5)
expressly provides that “[t]he United States and its agencies, offic-
ers, and employees shall be immune from liability based on good
faith conduct in carrying out” subsections (b) and (c).
The Fourth Amendment protects “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV.
Title 18 U.S.C. § 1001 prohibits, among other things, know-
ingly and willfully falsifying material facts, making materially false
statements, or making or using false documents that contain fraud-
ulent statements “in any matter within the jurisdiction of . . . the
Government of the United States. 18 U.S.C. § 1001(a).
Under Federal Rule of Civil Procedure 59(e), a party may ask
a district court to reconsider an earlier ruling. A Rule 59(e) motion
must be based upon “newly-discovered evidence or manifest errors
of law or fact.”
Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007).
It may not be used to relitigate old matters or raise argument or
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8 Opinion of the Court 21-10631
present evidence that could have been raised prior to the initial en-
try of judgment.
Id.
Here, Hill’s appeal fails for several reasons.3 First, Hill does
not directly challenge the magistrate judge’s conclusions in the re-
port, which was adopted by the district court, i.e., that his com-
plaint was patently frivolous nor that any amendment would be
futile. He has thus abandoned any argument as to those grounds
on which the district court dismissed his complaint without preju-
dice,
Sapuppo, 739 F.3d at 681–82, and we can affirm on that basis,
Big Top Koolers, 528 F.3d at 844. And we note that Hill does not
contend that the report and recommendation process failed to pro-
vide him proper notice and opportunity to respond.
Second, even if we assume for the sake of argument that
such challenge was not abandoned, Hill has not substantively
shown plain error as to each conclusion of the magistrate judge’s
report, which was adopted by the district court.
Id.; 11th Cir. R. 3-
1. For example, Hill has not shown how any of the alleged statu-
tory or constitutional bases for his claim he has raised after the fil-
ing of his complaint—18 U.S.C. § 4042, the Fourth Amendment, or
3 We conclude that, to the extent that Hill challenges the denial of his last post-
judgment motion in July 2021, for which he did not file an amended notice of
appeal, we do not have jurisdiction.
Smith v. Barry, 502 U.S. 244, 248 (1992)
(holding the timely filing of a notice of appeal in a civil case is a jurisdictional
requirement);
Bogle v. Orange Cnty. Bd. of Cnty. Comm’rs, 162 F.3d 653,
660–61 (11th Cir. 1998) (noting a notice of appeal must designate an existent
judgment or order). Accordingly, we dismiss Hill’s appeal in this respect.
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21-10631 Opinion of the Court 9
18 U.S.C. § 1001—are related or applicable to the facts he alleged
in his complaint, further confirming the conclusion that any
amendment would be futile.
See Tazoe, 631 F.3d at 1336;
see also
Silberman, 927 F.3d at 1133. As such, the district court did not err
in dismissing Hill’s complaint without prejudice
sua sponte and
without allowing Hill an opportunity to amend.
IV.
Accordingly, we affirm the district court's dismissal of Hill’s
complaint and denial of his post-judgment filings and, as noted
above, dismiss the portions of his appeal over which we have no
jurisdiction.
AFFIRMED IN PART, DISMISSED IN PART.
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