Dawud Canaan Sturrup Gabriel v. Windy Hill Foliage Incorporated

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12901
Non-Argument Calendar
____________________
DAWUD CANAAN STURRUP GABRIEL,
Plaintiff-Appellant,
versus
WINDY HILL FOLIAGE INCORPORATED,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:21-cv-14177-AMC
____________________
USCA11 Case: 21-12901 Date Filed: 06/24/2022 Page: 1 of 7

-- 1 of 7 --

2 Opinion of the Court 21-12901
Before WILSON, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
Dawud Canaan Sturrup Gabriel,
pro se, appeals the district
court (1) striking without prejudice of his amended complaint as an
impermissible shotgun pleading, (2) denying without prejudice his
proposed second amended complaint because it too was a shotgun
pleading, and (3) denying his motion to set aside those rulings as
void. He contends that the district court abused its discretion in
making those rulings. He also contends, for the first time on ap-
peal, that the district court judge erred by not
sua sponte recusing
herself. After careful review, we find no error and affirm.
I.
Forfeiture occurs automatically whenever a party fails to
timely assert their rights.
United States v. Campbell, 26 F.4th 860,
874 (11th Cir. 2022) (en banc). But courts do have the ability to
“resurrect” forfeited issues
sua sponte in “extraordinary circum-
stances.”
Id. at 872 (quoting
Wood v. Milyard, 566 U.S. 463, 471
n.5 (2012)). We have identified five situations in which we may
exercise our discretion to consider a forfeited issue:
(1) the issue involves a pure question of law and re-
fusal to consider it would result in a miscarriage of
justice; (2) the party lacked an opportunity to raise the
issue at the district court level; (3) the interest of sub-
stantial justice is at stake; (4) the proper resolution is
beyond any doubt; or (5) the issue presents significant
USCA11 Case: 21-12901 Date Filed: 06/24/2022 Page: 2 of 7

-- 2 of 7 --

21-12901 Opinion of the Court 3
questions of general impact or of great public con-
cern.
Id. at 873. Additionally,
pro se pleadings and other filings are liber-
ally construed.
See Gomez-Diaz v. United States, 433 F.3d 788, 791
(11th Cir. 2005).
A district judge must disqualify herself from any proceeding
in which her impartiality might reasonably be questioned.
28 U.S.C. § 455(a). “Section 455(a) requires recusal when the ob-
jective circumstances create an appearance of partiality.”
United
States v. Cerceda, 188 F.3d 1291, 1293 (11th Cir. 1999). But a charge
of partiality must be supported by some factual basis.
Id. “Recusal
cannot be based on ‘unsupported, irrational or highly tenuous
speculation.’”
Id. (quoting
In re United States, 666 F.2d 690, 694
(1st Cir. 1981)). Furthermore, under 28 U.S.C. § 144,
[w]henever a party to any proceeding in a district
court makes and files a timely and sufficient affidavit
that the judge before whom the matter is pending has
a personal bias or prejudice either against him or in
favor of any adverse party, such judge shall proceed
no further therein, but another judge shall be as-
signed to hear such proceeding.
Here, although Gabriel has forfeited the recusal issue by fail-
ing to raise it below, we exercise our discretion to consider the for-
feited issue because the proper resolution is beyond any doubt: the
district judge did not err by not recusing herself
sua sponte. Ga-
briel’s claims to the contrary are based on unsupported
USCA11 Case: 21-12901 Date Filed: 06/24/2022 Page: 3 of 7

-- 3 of 7 --

4 Opinion of the Court 21-12901
speculation. And § 144 does not apply because Gabriel did not file
an affidavit with the district court stating that he believed the dis-
trict judge harbored personal bias or prejudice against him. Ac-
cordingly, we affirm on this issue.
II.
We review orders dismissing complaints based on non-com-
pliance with federal rules for an abuse of discretion.
Goforth v.
Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). We review
de novo
a district court’s ruling on a Federal Rule of Civil Procedure
60(b)(4) motion to set aside a judgment as void.
Burke v. Smith,
252 F.3d 1260, 1263 (11th Cir. 2001).
To state a claim for relief, a pleading must include “a short
and plain statement of the claim showing that the pleader is enti-
tled to relief.” Fed. R. Civ. P. 8(a)(2). “A party must state its claims
or defenses in numbered paragraphs, each limited as far as practi-
cable to a single set of circumstances.” Fed. R. Civ. P. 10(b). “If
doing so would promote clarity, each claim founded on a separate
transaction or occurrence . . . must be stated in a separate count.”
Id. Pro se litigants are “subject to the relevant law and rules of
court, including the Federal Rules of Civil Procedure.”
Moon v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
Complaints that violate either Rule 8(a)(2) or Rule 10(b), or
both, are often referred to as “shotgun pleadings.”
Weiland v.
Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir.
2015). We have identified four rough types of shotgun pleadings:
USCA11 Case: 21-12901 Date Filed: 06/24/2022 Page: 4 of 7

-- 4 of 7 --

21-12901 Opinion of the Court 5
(1) complaints “containing multiple counts where each count
adopts the allegations of all preceding counts, causing each succes-
sive count to carry all that came before and the last count to be a
combination of the entire complaint”; (2) complaints containing
“conclusory, vague, and immaterial facts not obviously connected
to any particular cause of action”; (3) complaints that do “not sep-
arat[e] into a different count each cause of action or claim for re-
lief”; and (4) complaints that “assert[] multiple claims against mul-
tiple defendants without specifying which of the defendants are re-
sponsible for which acts or omissions, or which of the defendants
the claim is brought against.”
Id. at 1322–23. 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.”
Vibe
Micro, Inc. v. Shabanets, 878 F.3d 1291, 1294-95 (11th Cir. 2018)
(alteration in original) (quoting
Weiland, 792 F.3d at 1323). Shot-
gun pleadings “waste scarce judicial resources, ‘inexorably
broaden[] the scope of discovery,’ ‘wreak havoc on appellate court
dockets,’ and ‘undermine[] the public’s respect for the courts.’”
Id.
(alterations in original) (quoting
Davis v. Coca-Cola Bottling Co.
Consol., 516 F.3d 955, 979–80 & n.54 (11th Cir. 2008)).
While district courts may
sua sponte dismiss a complaint on
shotgun pleading grounds, we require them to allow a litigant one
chance to remedy such deficiencies.
Id. For example, in
Shabanets,
the plaintiff filed a “mostly incoherent complaint” with “duplica-
tive,” “inconsistent,” and “wholly conclusory” allegations in
USCA11 Case: 21-12901 Date Filed: 06/24/2022 Page: 5 of 7

-- 5 of 7 --

6 Opinion of the Court 21-12901
paragraphs spanning multiple pages.
Id. at 1294. The district court
gave the plaintiff an opportunity to replead and remedy his shotgun
pleading issues, “and provided him with a veritable instruction
manual on how to do so.”
Id. at 1293–95. We endorsed this ap-
proach, stating that, “[i]n these cases, even if the parties do not re-
quest it, the district court ‘should strike the complaint and instruct
counsel to replead the case.’”
Id. at 1295 (quoting
Byrne v. Nezhat,
261 F.3d 1075, 1133 n.113 (11th Cir. 2001)).
Under Rule 60(b)(4), “[o]n motion and just terms, the court
may relieve a party or its legal representative from a final judg-
ment, order, or proceeding [if] . . . the judgment is void.” Gener-
ally, a judgment is void under this rule if the court that rendered it
lacked jurisdiction, acted in a manner inconsistent with due process
of law, or was powerless to enter it.
Burke, 252 F.3d at 1263.
Here, the district court did not abuse its discretion in dis-
missing Gabriel’s amended complaint as a shotgun pleading. First,
the court properly concluded that the nearly 3,000-page amended
complaint was a shotgun pleading. Second, the court followed our
directive by giving Gabriel one chance to amend, along with a ver-
itable instruction manual on how to do so. Finally, Gabriel has
failed to explain why it was “impossible” for him to comply with
the 25-page limit imposed by the court on his second amended
complaint. As to his proposed second amended complaint, the mi-
nor alterations he claimed to have made make it no less of a shot-
gun pleading than his first amended complaint.
USCA11 Case: 21-12901 Date Filed: 06/24/2022 Page: 6 of 7

-- 6 of 7 --

21-12901 Opinion of the Court 7
Additionally, the district court properly denied Gabriel’s
motion to set aside as void its order striking his shotgun pleading.
Because, as explained above, the court properly complied with our
precedent regarding shotgun pleadings and amendment, the order
was not void. Accordingly, we affirm on this issue as well.
AFFIRMED.
USCA11 Case: 21-12901 Date Filed: 06/24/2022 Page: 7 of 7

-- 7 of 7 --