Mario Herrera, et al v. Joe Biden, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12476
Non-Argument Calendar
____________________
MARIO HERRERA,
GITTE TOLDSTED,
Plaintiffs-Appellants,
versus
JOE BIDEN,
BARACK OBAMA,
ERIC HOLDER,
PAM BONDI,
HILLARY RODHAM CLINTON,
U.S. State Department, et al.,
USCA11 Case: 21-12476 Date Filed: 08/24/2022 Page: 1 of 10

-- 1 of 10 --

2 Opinion of the Court 21-12476
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:20-cv-00555-AW-MAF
____________________
Before JORDAN, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Mario Herrera and Gitte Toldsted, proceeding
pro se, appeal
the district court’s order dismissing their second amended com-
plaint as a shotgun pleading and for failing to state a claim upon
which relief could be granted. Liberally construing the plaintiffs’
brief, which is over a hundred pages long, we understand their ar-
gument to be that multiple defendants violated numerous rights
and that government employees and entities, including the district
court, attempted to cover up those violations. They also argue (1)
that their motions to appeal
in forma pauperis should have been
granted and (2) that the district judge, the magistrate judge, and
Eleventh Circuit Judges Charles R. Wilson and Robert J. Luck
should have recused themselves from this case.
We affirm. As we write for the parties, our explanation of
the facts and procedural history is brief.
USCA11 Case: 21-12476 Date Filed: 08/24/2022 Page: 2 of 10

-- 2 of 10 --

21-12476 Opinion of the Court 3
Mr. Herrera and Mrs. Toldsted filed the second amended
complaint after being told at least twice by the magistrate judge to
comply with Federal Rule of Civil Procedure 8 by providing a short
and plain statement of their claim, to follow the local rule regarding
complaint formatting, to keep the complaint under 26 pages, and
to be “simple, concise, and direct” in explaining their factual allega-
tions. This complaint was 25 pages long (as opposed to the previ-
ous complaints—the first of which was about the same length but
contained over 100 pages of additional material and the second of
which was almost 200 pages long, not including the additional ma-
terial). But rather than providing facts, the second amended com-
plaint listed 24 statutes and constitutional amendments that had al-
legedly been violated.
See D.E. 24. It claimed vaguely that the 42
listed defendants—mostly government officials and employees—
“are directly involved in the chain of causation of federal criminal
actions together with the whole U.S. Government and the whole
Judicial System ending in collusion with . . . The Kingdom of Den-
mark,” and that the “whole” U.S. government acted in bad faith by
“hiding” the plaintiffs’ previous “accusations,” and “physical[ly],
psychological[ly], economical[ly], and mora[ly] damag[ing]” the
plaintiffs.
See id. at 7 (emphasis omitted). As compensation, the
plaintiffs requested 2.1 billion dollars.
The magistrate judge recommended dismissing the second
amended complaint for failure to state a claim upon which relief
could be granted. He concluded that the plaintiffs did not provide
any factual allegations in the complaint regarding the defendants’
USCA11 Case: 21-12476 Date Filed: 08/24/2022 Page: 3 of 10

-- 3 of 10 --

4 Opinion of the Court 21-12476
actions. The magistrate judge therefore concluded that the com-
plaint was an impermissible shotgun pleading and did not satisfy
Rule 8. The district court agreed, adopted and incorporated the
report, and dismissed the complaint.1
Mr. Herrera and Mrs. Toldsted had also requested that the
magistrate judge and the district judge recuse themselves or be re-
moved from the case. These motions were denied.
The plaintiffs appealed. The district judge, and then Judge
Luck, each denied the plaintiffs’ motion to proceed
in forma pau-
peris on appeal because the appeal was frivolous. In response, the
plaintiffs filed a “motion of protest” requesting Judge Luck’s recusal
which Judge Luck denied. The plaintiffs then filed a second “mo-
tion of protest” requesting reconsideration of the order denying
permission to proceed
in forma pauperis. This motion was denied
by Judges Wilson and Luck. The plaintiffs later filed a “motion for
recusal,” requesting that Judge Wilson be removed from the case—
as well as Judge Luck, the district court judge, the magistrate judge,
and any judge appointed by Presidents Bill Clinton, George W.
Bush, Barack Obama, Donald Trump, or Joe Biden. They acknowl-
edged that this would require the recusal of all active judges.
1 Later that same day, but after it dismissed the complaint, the district court
received the plaintiffs’ objections to the magistrate judge’s report. The objec-
tions were never addressed by the court and the plaintiffs do not raise or ad-
dress them on appeal, so we do not discuss them here.
USCA11 Case: 21-12476 Date Filed: 08/24/2022 Page: 4 of 10

-- 4 of 10 --

21-12476 Opinion of the Court 5
I
We liberally construe
pro se filings.
See Sconiers v. Lock-
hart, 946 F.3d 1256, 1262 (11th Cir. 2020). However, like other lit-
igants, a
pro se appellant abandons an issue by failing to address it
in his opening brief.
See Timson v. Sampson, 518 F.3d 870, 874
(11th Cir. 2008). A party fails to adequately brief a claim when it
does not “plainly and prominently raise it.”
Sapuppo v. Allstate
Floridian Ins., 739 F.3d 678, 681 (11th Cir. 2014) (quotation marks
omitted). An appellant abandons a claim when he “either makes
only passing references to it or raises it in a perfunctory manner
without supporting arguments and authority.”
Id. We will affirm
a judgment when the appellant fails to challenge one of the
grounds of the district court’s decision.
See id. at 680.
A
We review
de novo a district court’s dismissal of a complaint
for failure to state a claim, “accept[ing] the allegations in the com-
plaint as true and constru[ing] them in the light most favorable to
the plaintiff.”
Chua v. Ekonomou, 1 F.4th 948, 952 (11th Cir. 2021).
When reviewing a filing submitted
in forma pauperis, a district
court “shall dismiss the case at any time if the court determines
that” the action “fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). To prevent dismissal for
failure to state a claim, plaintiffs must allege sufficient facts to state
a claim for relief that is “plausible on its face.”
Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A complaint must “give the
defendant fair notice of what the claim is and the grounds upon
USCA11 Case: 21-12476 Date Filed: 08/24/2022 Page: 5 of 10

-- 5 of 10 --

6 Opinion of the Court 21-12476
which it rests.”
Id. at 555 (cleaned up). It must contain more than
“labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.”
Id. (quotation marks omitted).
We review the dismissal of a shotgun pleading under Rule 8
for an abuse of discretion.
See Vibe Micro, Inc. v. Shabanets,
878 F.3d 1291, 1294 (11th Cir. 2018). Shotgun pleadings violate
Rule 8(a)(2)’s “short and plain statement” requirement by “fail-
ing . . . to give the defendants adequate notice of the claims against
them and the grounds upon which each claim rests.”
Id. at 1294–
95 (cleaned up). A complaint can be considered a shotgun pleading
if it is composed of “conclusory, vague, and immaterial facts not
obviously connected to any particular cause of action,” does “not
separat[e] into a different count each cause of action or claim for
relief,” or “asserts multiple claims against multiple defendants
without specifying which of the defendants are responsible for
which acts or omissions, or which of the defendants the claim is
brought against.”
Weiland v. Palm Beach Cnty. Sheriff’s Off.,
792 F.3d 1313, 1321–23 (11th Cir. 2015).
A district court must allow a litigant at least one chance to
remedy any deficiencies before dismissing the complaint.
See Sha-
banets, 878 F.3d at 1295. But once the plaintiff has been given fair
notice of the specific defects in his complaint and a meaningful
chance to fix them, dismissal with prejudice is proper if the plaintiff
files “an amended complaint afflicted with the same defects.”
Jack-
son v. Bank of Am., N.A., 898 F.3d 1348, 1358–59 (11th Cir. 2018).
USCA11 Case: 21-12476 Date Filed: 08/24/2022 Page: 6 of 10

-- 6 of 10 --

21-12476 Opinion of the Court 7
Mr. Herrera and Mrs. Toldsted make no argument on ap-
peal that their second amended complaint did not fail to state a
claim or was not a shotgun pleading. In fact, at one point in their
brief, Mr. Herrera and Mrs. Toldsted contend that the “only role”
of the appellate court in this case “is to determine if due-process
was served” in the district court and conclude that it was not, pri-
marily because they were not allowed to get to a jury and the
judges did not recuse themselves.
See Appellants’ Brief at 90–91
(emphasis omitted). Because they did not address the failure to
state a claim or shotgun pleading grounds in their opening brief,
they have abandoned the arguments.
See Timson, 518 F.3d at 874.
We therefore affirm the district court’s dismissal.
See Sapuppo,
739 F.3d at 680.2
B
The plaintiffs claim that their motion to proceed
in forma
pauperis on appeal should not have been denied because their ap-
peal is not frivolous. But again they provide no argument—no fac-
tual or legal bases—for why it was incorrect to conclude that their
appeal is frivolous. At best, they restate some of the parties and
statutes involved, focusing in particular on an executive order by
2 If we were to consider the merits of whether the complaint failed to state a
claim or was a shotgun pleading, we would still affirm. The plaintiffs were
given fair notice of the defects of their complaint and two chances to fix them,
but they did not do so.
USCA11 Case: 21-12476 Date Filed: 08/24/2022 Page: 7 of 10

-- 7 of 10 --

8 Opinion of the Court 21-12476
President George W. Bush. This is not enough.
See Sapuppo,
739 F.3d at 681.
II
A judge subject to a motion for recusal presides over that
recusal decision.
See In re Evergreen Sec., Ltd., 570 F.3d 1257, 1278
(11th Cir. 2009). We review a district judge’s decision whether to
recuse himself for an abuse of discretion.
See Thomas v. Tenneco
Packaging Co., 293 F.3d 1306, 1319–20 (11th Cir. 2002).
We have held that “a district judge must recuse himself ‘in
any proceeding in which his impartiality might reasonably be ques-
tioned.’”
Id. at 1329 (quoting 28 U.S.C. § 455(a)). A district judge’s
impartiality may reasonably be questioned when “an objective,
fully informed lay observer would entertain significant doubt
about the judge’s impartiality.”
Id. (quotation marks omitted). A
district judge should also disqualify himself “[w]here he has served
in governmental employment and in such capacity participated as
counsel, adviser[,] or material witness concerning the proceeding
or expressed an opinion concerning the merits of the particular case
in controversy.”
See 28 U.S.C. § 455(b)(3). The same rules apply
to magistrate judges and circuit judges.
See § 455(a).
The plaintiffs argue that the magistrate judge, the district
judge, and Judges Wilson and Luck should have recused because
the people who appointed them to the bench are defendants in this
case. But that is not enough to require their recusal.
See Straw v.
United States, 4 F.4th 1358, 1363 (Fed. Cir. 2021) (“There is no
USCA11 Case: 21-12476 Date Filed: 08/24/2022 Page: 8 of 10

-- 8 of 10 --

21-12476 Opinion of the Court 9
support whatsoever for the contention that a judge can be disqual-
ified based simply on the identity of the President who appointed
him.”).3
The plaintiffs also argue that the district judge, Judge Allen
Winsor, should have recused because he was the Solicitor General
of Florida and worked for Former Florida Attorney General Pam
Bondi “in the same case.” Construing their brief liberally, we un-
derstand the plaintiffs to be claiming that in 2013, while Judge
Winsor worked for Ms. Bondi, the plaintiffs sent a letter with “ac-
cusations” to Florida Governor Rick Scott and asked him to for-
ward it to Ms. Bondi. They claim that Mr. Scott, Ms. Bondi, and
now-Judge Winsor destroyed those documents, and that that is the
basis, at least in part, of their obstruction of justice claim in this
case. This factual basis for the obstruction of justice claim, how-
ever, was not presented in the district court—nor was its alleged
connection to Judge Winsor clear. At best the plaintiffs argued be-
low that Judge Winsor was an employee of Ms. Bondi at the rele-
vant time and that “this clearly impl[ied that] he saw all movements
there.” Because the district court was not presented with the fac-
tual basis for the claim and how Judge Winsor was allegedly
3 The plaintiffs also request in their brief that a panel of senior judges review
their claims, arguing that all the active judges have a conflict of interest be-
cause the suit involves the presidents who respectively appointed them. But
because Mr. Herrera and Mrs. Toldsted have never offered any legal basis for
the recusal of all active judges, their motion and request are DENIED.
See
Straw, 4 F.4th at 1363.
USCA11 Case: 21-12476 Date Filed: 08/24/2022 Page: 9 of 10

-- 9 of 10 --

10 Opinion of the Court 21-12476
connected to it, it was not an abuse of discretion for him to deny
the motion to recuse.
III
Accordingly, we affirm the dismissal of the plaintiffs’ com-
plaint.
AFFIRMED.
USCA11 Case: 21-12476 Date Filed: 08/24/2022 Page: 10 of 10

-- 10 of 10 --