USCA11 Case: 21-10597 Date Filed: 02/08/2022 Page: 1 of 13
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10597
Non-Argument Calendar
____________________
ELBERT WALKER, JR.,
Plaintiff-Counter Defendant-Appellant,
versus
GERALD BERNARD WILLIAMS,
Defendant-Counter Claimant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:20-cv-00099-LAG
____________________
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2 Opinion of the Court 21-10597
Before NEWSOM, GRANT, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Plaintiff Elbert Walker filed this action against his former
criminal defense attorney, Defendant Gerald Williams, asserting a
§ 1983 claim and various state law claims arising from Defend-
ant’s alleged ineffective assistance of counsel. The district court
dismissed Plaintiff’s § 1983 claim under Federal Rule 12(b)(6) for
failure to state a claim upon which relief can be granted. Having
dismissed Plaintiff’s only federal claim, the district court declined
to exercise supplemental jurisdiction over Plaintiff’s remaining
state claims and dismissed those claims without prejudice. Plain-
tiff appeals both rulings. We find no error and thus AFFIRM.
In conjunction with his appeal, Plaintiff submitted a Mo-
tion for Untimely Reply to the Opposition Brief, which we con-
strued as a Motion for Leave to File a Reply Brief Out of Time.
We GRANT Plaintiff’s motion, and we have considered his reply
brief in ruling on this appeal.
BACKGROUND
Plaintiff and two co-defendants were charged in 2012 with
one count of conspiracy to commit multiple objects, including ar-
son, bank fraud, wire fraud, mail fraud, bankruptcy fraud, posses-
sion of a forged security, and making false declarations in court in
violation of
18 U.S.C. § 371. See United States v. Walker, 758 F.
App’x 868, 869 (11th Cir. 2019). Plaintiff was also charged sepa-
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21-10597 Opinion of the Court 3
rately with two counts of being a convicted felon in possession of
a firearm in violation of
18 U.S.C. § 922(g)(1) and one count of
possessing a firearm with an obliterated serial number in violation
of
18 U.S.C. § 922(k). See
id. The conspiracy charges were based
on evidence of a scheme perpetrated by Plaintiff and his co-
defendants that involved acquiring various properties, transfer-
ring the properties among each other, setting fire to the proper-
ties, and then making fraudulent insurance claims to collect mon-
ey for the fire losses. See
id. The firearms charges were based on
evidence that law enforcement agents found multiple guns, in-
cluding a shotgun with an obliterated serial number, when they
searched Plaintiff’s home in connection with the alleged conspira-
cy, and the fact that Plaintiff had a prior New Jersey conviction for
welfare fraud that initially resulted in a two-year sentence. See
id.
at 871.
Plaintiff and his co-defendants elected to have the charges
against them tried before a jury, and Defendant Gerald Williams
was appointed to represent Plaintiff at trial. See
id. at 869. After a
three-week trial, Plaintiff and his co-defendants were convicted of
the conspiracy charge, and Plaintiff was also convicted of the fire-
arms charges. See
id. at 871. Plaintiff was sentenced
to concurrent prison terms of 121 months for the conspiracy, 120
months for each of the § 922(g) firearm offenses, and 60 months
for possession of a firearm with an obliterated serial number. See
id. With the assistance of a different defense attorney, Plaintiff
appealed his conviction and sentence to this Court, arguing that
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4 Opinion of the Court 21-10597
the district court erred by denying his motion for judgment of ac-
quittal on the conspiracy charge and that he was entitled to a new
trial because of prosecutorial misconduct. See id. at 868. This
Court affirmed Plaintiff’s conviction and sentence in February
2019. See id. at 874.
Plaintiff subsequently filed this pro se complaint against
Defendant, asserting for the first time that Defendant had provid-
ed ineffective assistance during his criminal trial. In his com-
plaint, Plaintiff asserted a § 1983 claim against Defendant to re-
cover for Fifth and Sixth Amendment violations allegedly arising
from the ineffective assistance—specifically, from Defendant’s
failure to investigate the case, make relevant objections, and
properly subpoena or cross-examine witnesses at trial. According
to Plaintiff, Defendant’s failures at trial caused him to incur a ten-
year sentence in federal prison and resulted in other financial and
emotional harm to Plaintiff.
In his Answer, Defendant denied Plaintiff’s substantive al-
legations regarding ineffective assistance of counsel, argued that
he did not act under color of law while representing Plaintiff at
trial as required for Plaintiff to prevail on his § 1983 claim, and as-
serted defenses based on failure of service and the statute of limi-
tations. 1 In conjunction with his Answer, Defendant filed a mo-
1 Defendant also asserted a state law counterclaim, in which he alleged that
Plaintiff’s complaint was frivolous and sought to recover the expenses of liti-
gating the action. The district court dismissed the counterclaim, and De-
fendant has not challenged that ruling on appeal.
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21-10597 Opinion of the Court 5
tion to dismiss Plaintiff’s complaint pursuant to Federal Rule
12(b)(6) for failure to state a cognizable claim. In support of the
motion, Defendant argued that he had not been properly served,
that Plaintiff’s federal and state claims were barred by the statute
of limitations, that he did not act under color of law when he rep-
resented Plaintiff as required for Plaintiff to prevail on his § 1983
claim, and that Plaintiff’s complaint did not state a claim for re-
covery under state law.
The district court granted Defendant’s motion to dismiss.
As to Plaintiff’s federal claim, the court noted that § 1983 only
provides relief against an official acting under color of law, and
that a court-appointed attorney does not act under color of law
for purposes of § 1983. See Polk Cnty. v. Dodson,
454 U.S. 312,
325 (1981) (“[A] public defender does not act under color of state
law when performing a lawyer’s traditional functions as counsel
to a defendant in a criminal proceeding.”). All of Plaintiff’s allega-
tions, the court explained, revolved around case-related strategic
decisions made by Defendant in the course of his representation
of Plaintiff. As such, the court held, Plaintiff’s complaint did not
state a claim for relief under § 1983. Having dismissed Plaintiff’s
federal claim, the court declined to exercise supplemental jurisdic-
tion over his remaining state claims and dismissed those claims
without prejudice pursuant to
28 U.S.C. § 1367(c)(3).
The district court acknowledged in its order that a pro se
plaintiff should be given an opportunity to amend before dismiss-
ing his complaint with prejudice when it appears that the com-
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6 Opinion of the Court 21-10597
plaint “if more carefully drafted, might state a claim.” But the
court held that dismissal of Plaintiff’s § 1983 claim with prejudice
was appropriate here, given that Defendant did not act under col-
or of law while representing Plaintiff and thus could not be liable
under § 1983 for his alleged ineffective representation. Neverthe-
less, the court denied Defendant’s request to sanction Plaintiff
under Rule 11, emphasizing Plaintiff’s pro se status and the fact
that the court could not evaluate the merit of his state claims,
having declined to exercise jurisdiction over those claims.
Plaintiff appeals, identifying as issues for appeal whether
Defendant deprived Plaintiff of various constitutional rights by
failing to investigate his criminal case, make relevant arguments
and objections at Plaintiff’s trial, and subpoena witnesses to testify
at trial. In support of his appeal, Plaintiff argues, as he argued be-
low, that Defendant’s ineffective assistance during his criminal
trial deprived him of various federal constitutional rights and
caused him to suffer emotional distress for which he can recover
under state law. Plaintiff does not address in his appellate briefing
the district court’s rationale for dismissing his § 1983 claim—that
is, that Defendant was not acting under color of law while repre-
senting Plaintiff in his criminal trial, and thus cannot be liable un-
der § 1983 for any errors he made during the representation.
Plaintiff also does not discuss in his brief the district court’s deci-
sion to decline supplemental jurisdiction over his remaining state
law claims.
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21-10597 Opinion of the Court 7
DISCUSSION
I. Plaintiff’s Section 1983 Claim
We review the district court’s order dismissing Plaintiff’s
§ 1983 claim under Federal Rule 12(b)(6) de novo, accepting the
allegations in the complaint as true and construing them in the
light most favorable to Plaintiff. Tolar v. Bradley Arant Boult
Commings, LLP,
997 F.3d 1280, 1299 (11th Cir. 2021). A com-
plaint is subject to dismissal under Rule 12(b)(6) if it does not
“contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.”
Id. at 1299–1300 (quot-
ing Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quotation marks
omitted)). “A claim is facially plausible when it is supported by
facts that permit a reasonable inference that the defendant is liable
for the misconduct alleged.” Id. at 1300 (quotation marks omit-
ted).
This Court construes a pro se litigant’s pleadings liberally,
and we hold such pleadings to a less stringent standard than
pleadings drafted by an attorney. See United States v. Cordero, 7
F.4t h 1058, 1068 n.11 (11th Cir. 2021) (noting that “pro se plead-
ings are liberally construed”). However, the Court “may not
serve as de facto counsel” for a pro se litigant or “rewrite” a defi-
cient pleading. See id. Like any complainant, a pro se plaintiff
must include in his complaint enough factual allegations that
“raise a right to relief above the speculative level” to survive a
Rule 12(b)(6) motion to dismiss. See Saunders v. Duke,
766 F.3d
1262, 1266 (11th Cir. 2014) (quotation marks omitted).
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The only federal right to relief Plaintiff asserts in his com-
plaint is a claim under
42 U.S.C. § 1983. Section 1983 creates a
private cause of action that allows a plaintiff to recover for the
deprivation of a federal right by a person acting under color of
state law. See Focus on the Family v. Pinellas Suncoast Transit
Auth.,
344 F.3d 1263, 1276–77 (11th Cir. 2003) (citing § 1983 and
noting that the provision allows recovery where a plaintiff can
show he was “deprived of a right secured by the Constitution or
laws of the United States, and that the alleged deprivation was
committed under color of state law”). To prevail on a claim un-
der § 1983, Plaintiff must show both that (1) Defendant deprived
him of a right secured by the United States Constitution or federal
law and (2) “the alleged deprivation was committed under color
of state law.” Id. As noted above, the district court granted De-
fendant’s motion to dismiss Plaintiff’s § 1983 claim because all of
Plaintiff’s allegations involve Defendant’s alleged malpractice
while representing Plaintiff as court-appointed defense counsel
during Plaintiff’s criminal trial, and the Supreme Court held years
ago that court-appointed counsel “does not act under color of
state law when performing a lawyer’s traditional functions as
counsel to a defendant in a criminal proceeding.” Dodson,
454
U.S. at 325.
As an initial matter, Plaintiff has abandoned on appeal any
challenge to the dismissal of his § 1983 claim on the ground that
he cannot satisfy the color of state law requirement because he
failed to address that issue in his appellate briefing. See Timson v.
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21-10597 Opinion of the Court 9
Sampson,
518 F.3d 870, 874 (11th Cir. 2008) (“While we read
briefs filed by pro se litigants liberally, issues not briefed on appeal
by a pro se litigant are deemed abandoned.” (citations omitted)).
In his opening brief, Plaintiff identifies as issues for appeal wheth-
er Defendant violated his federal Due Process and other constitu-
tional rights by committing various errors while representing
Plaintiff during his criminal trial. Never once in his brief does
Plaintiff argue that Defendant can be liable for the alleged errors
under § 1983 because he was acting under color of state law when
he committed them.2 Because Plaintiff has abandoned any argu-
ment that he can satisfy the color of state law requirement, we
affirm the district court’s order dismissing his § 1983 claim. See
id. (holding that a pro se plaintiff had abandoned an issue by fail-
ing to address it in his opening brief).
2 Had Plaintiff attempted to raise the color of law issue in his reply brief,
which we have considered despite its untimely filing, it would have been too
late to preserve the issue for appeal. See Timson,
518 F.3d at 874 (“[W]e do
not address arguments raised for the first time in a pro se litigant’s reply
brief.”). But we note that Plaintiff’s reply brief for the most part just rehash-
es the arguments made in his opening brief. Plaintiff argues in his reply brief
that he was not a convicted felon when he was charged with the § 922(g) of-
fense in this case, that the Government fabricated evidence in his criminal
trial, and that Defendant failed to investigate, make objections, and subpoena
or cross-examine witnesses at trial. Plaintiff does not squarely address in his
reply brief the district court’s reason for dismissing his § 1983 claim: that De-
fendant did not act under color of law while representing Plaintiff and thus
cannot be held liable under § 1983 for his alleged errors during the represen-
tation.
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10 Opinion of the Court 21-10597
We note also that the district court did not err on the mer-
its by dismissing Plaintiff’s § 1983 claim on this ground, because
the allegations in Plaintiff’s complaint do not support a rational
inference that Defendant acted under color of state law when he
represented Plaintiff in his criminal trial and they do not suggest
any other plausible basis for holding Defendant liable under
§ 1983. However, we do clarify one point that neither party has
addressed. Plaintiff was indicted on federal charges and tried in
federal court, and it appears from the record that Defendant was
appointed to represent Plaintiff by the federal district court in the
Middle District of Georgia. Plaintiff’s claim for constitutional er-
ror presumably would thus arise, if at all, under Bivens v. Six Un-
known Named Agents of Federal Bureau of Narcotics,
403 U.S.
388 (1971), rather than § 1983. See Corr. Serv. Corp. v. Malesko,
534 U.S. 61, 66 (2001) (noting that Bivens recognized “an implied
private action for damages against federal officers alleged to have
violated a citizen’s constitutional rights”). The difference be-
tween the two claims is that Plaintiff would have to show that
Defendant was acting under color of federal—as opposed to
state—law to prevail under Bivens. See Abella v. Rubino,
63 F.3d
1063, 1065 (11th Cir. 1995) (“The effect of Bivens was, in essence,
to create a remedy against federal officers, acting under color of
federal law, that was analogous to the section 1983 action against
state officials.” (citation and quotation marks omitted)).
Nevertheless, and pursuant to the above discussion, Plain-
tiff has abandoned any argument that Defendant acted under col-
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21-10597 Opinion of the Court 11
or of either state or federal law by failing to address the issue in
his appellate briefing. Furthermore, we see no reason why the
Supreme Court’s holding in Dodson—that a court-appointed at-
torney representing a defendant in state court does not act under
color of state law—should not apply equally to a court-appointed
attorney representing a defendant in federal court. The Court
reasoned in Dodson that a court-appointed attorney representing
a criminal defendant in state court does not act under color of
state law because he “works under canons of professional respon-
sibility that mandate his exercise of independent judgment on be-
half of the client.” See Dodson,
454 U.S. at 321. That rationale
holds true for a court-appointed attorney representing a defend-
ant in federal court, meaning that Defendant did not act under
color of state or federal law while representing Plaintiff and thus
cannot be held liable under either § 1983 or Bivens. We make this
point only to clarify that any claim Plaintiff might have asserted
under Bivens, but failed to assert possibly because of his pro se
status, would be subject to dismissal under Federal Rule 12(b)(6)
for the same reason that his § 1983 claim was dismissed. See id.
Finally, we agree with the district court that amendment to
Plaintiff’s complaint would be futile. See Coventry First, LLC v.
McCarty,
605 F.3d 865, 870 (11th Cir. 2010) (“A proposed
amendment may be denied for futility when the complaint as
amended would still be properly dismissed.” (quotation marks
omitted)). Again, Plaintiff’s allegations are all based on malprac-
tice allegedly committed by Defendant while representing Plain-
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12 Opinion of the Court 21-10597
tiff as a court-appointed attorney during Plaintiff’s criminal trial.
Pursuant to Dodson, there is no basis for holding Defendant liable
under federal law for the alleged malpractice. See Dodson,
454
U.S. at 325. Thus, the district court did not err when it dismissed
Plaintiff’s § 1983 claim with prejudice.
II. Plaintiff’s State Law Claims
Having dismissed Plaintiff’s only federal claim, the district
court declined to exercise supplemental jurisdiction over Plain-
tiff’s remaining state claims and dismissed those claims without
prejudice. Again, Plaintiff abandoned this issue by failing to ad-
dress it in his opening brief. See Timson,
518 F.3d at 874.
Even if Plaintiff had raised the dismissal of his state claims
as an issue, we discern no error. A federal district court “may de-
cline to exercise supplemental jurisdiction” over pending state law
claims once the court “has dismissed all claims over which it has
original jurisdiction.”
28 U.S.C. § 1367(c)(3). After the dismissal
of Plaintiff’s § 1983 claim, there remained no pending claim over
which the district court had original jurisdiction. At that point,
the court had discretion to dismiss Plaintiff’s state claims, and it
followed this Court’s guidance in choosing to do so. See Woods
v. Comm’r, Ala. Dep’t of Corr.,
951 F.3d 1288, 1295 (11th Cir.
2020) (noting that the decision to exercise supplemental jurisdic-
tion over state claims once federal claims have been dismissed is
within the district court’s discretion, and that this Court has en-
couraged dismissal of state claims following the dismissal of a
plaintiff’s federal claims).
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CONCLUSION
For the foregoing reasons, we construe Plaintiff’s Motion
for Untimely Reply as a Motion for Leave to File a Reply Out of
Time and we GRANT that motion. Having carefully reviewed
the record and the arguments of the parties on appeal, we
AFFIRM the district court’s order dismissing Plaintiff’s complaint.
