Gloria Smith-Grimes v. Judge Glenn D. Kelley, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12186
Non-Argument Calendar
____________________
GLORIA SMITH-GRIMES,
Plaintiff-Appellant,
versus
JUDGE GLENN D. KELLEY,
Circuit Court in Palm Beach County, Florida,
JUDGE JANNIS B. KEYSER,
Circuit Court of Palm Beach County,
JUDGE PETER D. BLANC,
Circuit Court of Palm Beach County,
SENATOR DAVE ARONBERG,
Palm Beach State Attorney General,
JERROLD JACOB GOLSOM,
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2 Opinion of the Court 21-12186
Cherokee North Carolina. Murphy, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:21-cv-80046-KAM
____________________
Before J ILL PRYOR , NEWSOM , and B RANCH, Circuit Judges
PER CURIAM:
Gloria Smith-Grimes,
pro se, appeals the district court’s dis-
missal of her amended complaint, denial of her subsequent motion
for clarification of the dismissal order, and denial of her motion for
recusal.
In January 2021, Smith-Grimes filed an amended complaint
in federal court against multiple defendants—including several
state judges who, at different points, presided over proceedings in-
volving the foreclosure of her home—in their individual and of-
ficial capacities. In February 2021, the judge defendants and de-
fendant Aronberg filed a motion to dismiss the amended com-
plaint. They argued that the judges were entitled to judicial im-
munity, that the statute of limitations had passed, and that the com-
plaint contained no allegations against defendant Aronberg. Smith-
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21-12186 Opinion of the Court 3
Grimes opposed the dismissal motion, explaining the sequence of
events that led to the loss of her home but failing to explain how
those facts could overcome the arguments in the defendants’ mo-
tion to dismiss. On April 19, 2021, the district court granted the
dismissal, but, notably, no separate document setting out the judg-
ment was entered on the docket.
On May 3, 2021, Smith-Grimes filed a document entitled
“Plaintiff’s Motion for Clarification to Court Order to Dismiss.” In
that motion, she moved the court to reconsider the dismissal of her
amended complaint. On May 18, 2021, the district court denied
her “clarification” motion.
After the district court denied her clarification motion,
Smith-Grimes filed a motion requesting that the federal district
court judge presiding over the proceeding recuse himself. She ar-
gued that the federal district court judge was biased because he
knew the judge defendants personally and ruled against the plain-
tiff. On June 2, 2021, the district court denied that motion as well,
on the basis that Smith-Grimes had only requested recusal because
of the previous adverse rulings against her, a reason insufficient to
show bias or otherwise warrant recusal.
On June 28, 2021, Smith Grimes appealed the district court’s
various orders. Smith-Grimes argues that the district court erred
in granting judicial immunity to the state judges. She also con-
tends, albeit on grounds different from those she raised below, that
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4 Opinion of the Court 21-12186
the district court judge was partial and thus erred in denying her
motion for recusal.1
We issued a jurisdictional question to the parties, asking
them to address whether the notice of appeal was timely as to the
May 18 order denying Smith-Grimes’s “clarification” motion. The
defendants responded, essentially, that we lack jurisdiction over a
challenge to the May 18 order because Smith-Grimes did not file
the notice of appeal within 30 days of its entry. Smith-Grimes filed
an opening brief but did not respond to the jurisdictional question.
Rather than respond to Smith-Grimes’s opening brief, the
judge defendants moved for summary affirmance of the district
court’s dismissal of Smith-Grimes’s amended complaint and for a
stay of the briefing schedule, arguing that her appeal is frivolous
1 To the extent Smith-Grimes intends to challenge the dismissal of her com-
plaints and denial of her motion for recusal on grounds other than discussed
herein, she has abandoned any such arguments by failing to plainly and prom-
inently raise them in her initial brief or her response to the judge defendants’
motion for summary affirmance.
See Irwin v. Hawk, 40 F.3d 347, 347 n.1 (11th
Cir. 1994);
Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168–69 (11th Cir. 2014)
(although we liberally construe
pro se pleadings, we will not “serve as
de facto
counsel for a party [or] rewrite an otherwise deficient pleading in order to sus-
tain an action”). Smith-Grimes also sued numerous other defendants based
on state-law claims, and the district court refused to exercise supplemental ju-
risdiction over those claims once it found that judicial immunity barred the
federal claim that is the subject of this appeal. Because she failed to raise any
argument as to the district court’s dismissal of her state-law counts below, we
will not consider her arguments for the first time on appeal.
See Finnegan v.
Comm’r of Internal Revenue, 926 F.3d 1261, 1271 (11th Cir. 2019).
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21-12186 Opinion of the Court 5
and that no substantial question exists as to the outcome of the
case. Smith-Grimes filed a response in which she reiterated her
prior arguments.
I
As a threshold matter, we have an obligation to
sua sponte
assure ourselves of our own jurisdiction.
Reaves v. Sec’y, Fla.
Dep’t of Corr., 717 F.3d 886, 905 (11th Cir. 2013). The timely filing
of a notice of appeal in a civil case is a jurisdictional requirement,
and this Court cannot entertain an appeal that is out of time.
Green
v. Drug Enf’t Admin., 606 F.3d 1296, 1300 (11th Cir. 2010);
see also
Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 20
(2017).
To be timely, a notice of appeal in a civil case must be filed
no later than 30 days after the challenged order or judgment is en-
tered on the docket. 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A).
So, to figure out whether Smith-Grimes’s appeal is timely, we must
determine when each of the district court’s orders was entered on
the docket for the purpose of starting the countdown, and whether
30 days elapsed between those dates and her notice of appeal.
We start with Smith-Grimes’s appeal of the April 19, 2021,
order dismissing her amended complaint. That appeal is timely
even though more than 30 days elapsed between the order and her
appeal. This is so because, under Federal Rule of Civil Procedure
58(a), “[e]very judgment and amended judgment must be set out
in a separate document,” except orders that dispose of motions in
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6 Opinion of the Court 21-12186
delineated circumstances. Fed. R. Civ. P. 58(a). When a separate
document is required by Rule 58(a), a judgment or order is deemed
entered for purposes of Federal Rule of Appellate Procedure 4(a)
when either the judgment or order is set forth on a separate docu-
ment or 150 days have run from entry of the judgment or order on
the civil docket, whichever is earlier. Fed. R. App. P. 4(a)(7)(A);
see
Fed. R. Civ. P. 58(c)(2). The district court failed to set forth the
judgment of dismissal in a separate document as required. Thus,
Smith-Grimes had 150 days from entry of the judgment—meaning
that she was required to file a notice of appeal challenging the April
19, 2021 final order on or before October 18, 2021. Because her
notice of appeal was filed on June 28, 2021, it is timely to challenge
the April 19, 2021 final order.
The appeal of the district court’s May 18 denial of Smith-
Grimes’s “clarification” motion was untimely. That motion is best
understood as a motion for reconsideration pursuant to Federal
Rule of Civil Procedure 59(e) because it provided arguments as to
why the case should not have been dismissed and requested that
the district court reconsider its judgment.
Finch v. City of Vernon,
845 F.2d 256, 258–59 (11th Cir. 1988) (holding that a timely filed
postjudgment motion, which “calls into question the correctness
of that judgment [] should be treated as a motion under Rule 59(e),
however it may be formally styled”). As with the dismissal order
discussed above, the district court did not enter judgment regard-
ing its denial of reconsideration in a separate document. But “a
separate document is not required for an order disposing of a
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21-12186 Opinion of the Court 7
motion . . . to alter or amend the judgment, under Rule 59.” Fed.
R. Civ. P. 58(a)(4). A motion for reconsideration will be deemed
a Rule 59(e) motion if it is timely and seeks “reconsideration of mat-
ters encompassed in a decision on the merits of the dispute, and not
matters collateral to the merits,” regardless of how it is actually la-
belled.
Finch, 845 F.2d at 258–59;
Livernois v. Med. Disposables,
Inc., 837 F.2d 1018, 1020–21 (11th Cir. 1988).
Thus, the statutory time limit required that Smith-Grimes
file a notice of appeal challenging the May 18 denial of the clarifica-
tion motion on or before June 17, 2021—30 days after the entry of
the order.
See 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A). Be-
cause the notice of appeal was filed on June 28, 2021, the notice of
appeal is untimely to challenge the May 18 order, and we lack ju-
risdiction to review it.
See Green, 606 F.3d at 1300–01.
Lastly, the notice of appeal is timely to challenge the district
court’s June 2, 2021 order denying the motion to recuse as it was
filed within 30 days of the entry of that postjudgment order.
* * *
In summary, Smith-Grimes’s appeal of the district court’s
April 19 dismissal order and its June 2 order denying the motion to
recuse were timely. But we don’t have jurisdiction to review the
district court’s May 18 order denying Smith-Grimes’s clarification
motion because it was untimely appealed.
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II
We now turn to whether the defendants are entitled to sum-
mary disposition of this case. Summary disposition is appropriate
where, as relevant here, “the position of one of the parties is clearly
right as a matter of law so that there can be no substantial question
as to the outcome of the case, or where, as is more frequently the
case, the appeal is frivolous.”
Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).2
We start with Smith-Grimes’s appeal of the district court’s
April 19 order dismissing her complaint. The district court cor-
rectly dismissed the case because the judge defendants were enti-
tled to absolute judicial immunity. A judge enjoys absolute judicial
immunity when she acts in her judicial capacity, so long as she does
not act “in the clear absence of all jurisdiction.”
Sibley v. Lando,
437 F.3d 1067, 1070 (11th Cir. 2005) (quotation marks omitted).
“Whether a judge’s actions were made while acting in his judicial
capacity depends on whether: (1) the act complained of consti-
tuted a normal judicial function; (2) the events occurred in the
2 We review de novo a district court’s dismissal for failure to state a claim,
accepting the allegations in the complaint as true and construing them in the
light most favorable to the plaintiff.
Sibley v. Lando, 437 F.3d 1067, 1070 (11th
Cir. 2005). However, only a complaint that states a plausible claim for relief
can survive a motion to dismiss.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
We also review de novo the grant of absolute judicial immunity.
Smith v.
Shook, 237 F.3d 1322, 1325 (11th Cir. 2001). We review for an abuse of discre-
tion a district court’s denial of a motion for recusal.
United States v. Scrushy,
721 F.3d 1288, 1303 (11th Cir. 2013).
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21-12186 Opinion of the Court 9
judge’s chambers or in open court; (3) the controversy involved a
case pending before the judge; and (4) the confrontation arose im-
mediately out of a visit to the judge in his judicial capacity.”
Id. Ab-
solute judicial immunity “applies even when the judge’s acts are in
error, malicious, or were in excess of his or her jurisdiction.”
Id.
The judge defendants in this case are entitled to judicial im-
munity. None of the allegations in Smith Grimes’s amended com-
plaint raised a plausible inference that any of the judge defendants
took any actions in the clear absence of all jurisdiction, and the dis-
trict court thus did not err in finding that they were entitled to ab-
solute immunity.
See id. Moreover, Smith-Grimes did not raise
the arguments she makes in this respect before the district court,
see Finnegan v. Comm’r of Internal Revenue, 926 F.3d 1261, 1271
(11th Cir. 2019), and even if she had preserved them, she, at most,
alleges erroneous or malicious conduct insufficient to defeat judi-
cial immunity.
See Sibley, 437 F.3d at 1070.3
The defendants were also entitled to summary affirmance
on Smith-Grimes’s appeal of the order denying recusal. There are
two types of recusals under 28 U.S.C. § 455.
United States v.
Scrushy, 721 F.3d 1288, 1303 (11th Cir. 2013). Section 455 requires
recusal (i) in any proceeding in which the impartiality of a judge
might reasonably be questioned, or (ii) if a judge has “a personal
3 Additionally, the district court properly dismissed the case against defendant
Aronberg as no allegations were made against him. Even Smith-Grimes con-
cedes that she did not intend to include him as a defendant.
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10 Opinion of the Court 21-12186
bias or prejudice concerning a party, or personal knowledge of dis-
puted evidentiary facts concerning the proceeding.”
Scrushy, 721
F.3d at 1303 (citing 28 U.S.C. § 455(b)(1)).
To the extent that Smith-Grimes has preserved her argu-
ments as to recusal, the district court did not abuse its discretion in
denying her motion because she failed to show any bias on the part
of the district court judge other than alleging that he knew the
judge defendants, which was insufficient to raise a reasonable ques-
tion as to impartiality.
See 28 U.S.C. § 455(a);
Scrushy, 721 F.3d at
1303.
Although we are not unsympathetic to Smith-Grimes’s
plight, the judge defendants’ position is clearly correct as a matter
of law, no substantial question exists as to the outcome of the case,
and summary affirmance is proper in the above respects.
See
Groendyke Transp., Inc., 406 F.2d at 1162.
* * *
After considering the parties’ responses to the jurisdictional
question, the instant appeal is DISMISSED, in part, for lack of ju-
risdiction as to the May 18, 2021 order. The appellees’ motion for
summary affirmance as to the June 2, 2021 order and the April 19,
2021 final order is GRANTED, and their motion to stay the briefing
schedule is DENIED as moot.
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