USCA11 Case: 21-11471 Date Filed: 03/08/2022 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11471
Non-Argument Calendar
____________________
BENJAMIN TILLMAN,
Plaintiff-Appellant,
versus
OFFICER LAWRIMORE,
U.S. Probation Officer/Investigator,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-00756-ELR
____________________
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2 Opinion of the Court 21-11471
Before JORDAN, JILL PRYOR, and GRANT, Circuit Judges.
PER CURIAM:
Benjamin Tillman, proceeding pro se, appeals the dismissal
of his complaint alleging that U.S. Probation Officer Lawrimore 1
fraudulently denied his request to transfer his probation supervi-
sion to Georgia. Tillman’s complaint failed to state a claim upon
which relief could be granted. Thus, we affirm the district court’s
dismissal of his case.
I. BACKGROUND
In 1997, Tillman was convicted in the United States District
Court for the Northern District of Florida of conspiracy to possess
with intent to distribute cocaine base, and he was sentenced by the
district court to 480 months of imprisonment and 10 years of su-
pervised release. After Tillman’s sentence was reduced under the
First Step Act, 2 he was released from prison and began to serve his
term of supervised release.
While on supervised release, Tillman sought to move from
Pensacola, Florida to the Atlanta, Georgia metropolitan area to be
with his family and fiancée. Under the terms of his supervised re-
lease, he could not leave the judicial district without permission
1 The complaint does not include Officer Lawrimore’s first name.
2 First Step Act of 2018, Pub. L. No. 115-391, § 404,
132 Stat. 5194, 5222.
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21-11471 Opinion of the Court 3
from the court or his probation officer.3 He filed a motion in the
district court requesting permission to move out of the district. The
district court entered an order denying his motion to transfer resi-
dence because the probation office was not accepting any transfers
of supervision at the time due to the COVID-19 pandemic.
Several months later, Tillman filed a second administrative
request to transfer residence, now seeking to move with his fiancée
to a different address in the Atlanta area. He claimed that he had
secured an apartment in Georgia and had a potential job oppor-
tunity. His transfer request was reviewed by Lawrimore, who, af-
ter investigating Tillman’s plans for employment and housing, de-
termined that they were too tenuous to support a transfer of super-
vision. Lawrimore ultimately denied the request because he be-
lieved that transfer might jeopardize Tillman’s future compliance
with the terms of his supervised release.
Tillman filed another motion with the district court, asking
it to intervene in his relocation conflict with Lawrimore. According
to Tillman, Lawrimore had committed fraud, falsified a document,
and investigated the transfer in bad faith. Tillman alleged that Law-
rimore based the transfer denial on the false claim that the leasing
agency for the apartment where Tillman planned to live refused to
3 A person serving a term of supervised release may be transferred to a new
district of supervision with the permission of the probation officers of both the
transferring and receiving districts.
28 C.F.R. § 2.206(f). Although the record
does not include a copy of Tillman’s administrative request, the government
has never argued that Tillman failed to file such a request.
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4 Opinion of the Court 21-11471
rent to people with felony convictions. Tillman submitted an email
as evidence that the leasing agency had, in fact, approved Tillman’s
living there despite his prior felony conviction.
The district court denied the motion and cited three letters
from the probation office detailing the transfer investigation. Till-
man filed a motion for reconsideration, again alleging that Law-
rimore had made false statements. According to Tillman, Law-
rimore: falsely stated that the leasing agency refused to allow con-
victed felons to live there, persuaded Tillman’s prospective em-
ployer not to hire Tillman, and misrepresented statements from
Tillman’s fiancée. Tillman included an affidavit in which his fiancée
stated that, in his letter denying Tillman’s transfer, Lawrimore had
misrepresented her statements. The district court denied the mo-
tion for reconsideration.
Tillman persevered. Instead of continuing to pursue his
transfer as a criminal matter in the district court in Florida, he filed
a civil suit against Lawrimore in the United States District Court
for the Northern District of Georgia. In this lawsuit, he alleged that
Lawrimore erroneously denied his transfer and made false state-
ments about the lease to the probation office. Tillman specifically
alleged that Lawrimore grounded his decision to deny the transfer
request on the fraudulent basis that the apartment complex where
Tillman planned to live had a policy of denying applications from
people with felony convictions. Tillman reported that the leasing
agent told the probation officers that he met the community’s qual-
ifications and was approved to live there.
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21-11471 Opinion of the Court 5
The complaint sought sanctions for Lawrimore’s conduct
and another chance for Tillman to submit his request to transfer
supervision to Georgia. The complaint mentioned
18 U.S.C.
§ 1001, which imposes criminal penalties for making false state-
ments to the federal government. Tillman styled his claim as a
Bivens action, which allows a plaintiff to recover damages from a
federal officer who has violated the plaintiff’s constitutional rights.
See Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388
(1971).
Tillman requested permission to file his complaint in forma
pauperis, which a magistrate judge granted. In a report and recom-
mendation (“R&R”), the judge screened Tillman’s complaint to de-
termine whether it was frivolous, malicious, or failed to state a
claim for relief. See
28 U.S.C. § 1915(e)(2)(B). First, the magistrate
judge concluded that Tillman sought relief that was unavailable in
a Bivens action. Second, the magistrate judge explained that, be-
cause the complaint raised the same issues and arguments as the
motions decided by the district court in Tillman’s criminal case, the
district court in the civil case could not rule on the complaint and
thereby reconsider another district court’s decision. Third, the
magistrate judge noted that Tillman failed to state a claim under
the Federal Tort Claims Act (“FTCA”),
28 U.S.C. §§ 1346(b), 2671–
80. The magistrate judge recommended that the district court dis-
miss the case.
Tillman objected to the magistrate judge’s recommendation
because it failed to provide notice that the court would
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6 Opinion of the Court 21-11471
recharacterize his complaint—which had asked the court to take
judicial notice of Lawrimore’s fraud and sanction him—as a Bivens
action. The district court found that, “to the degree that notice
[was] required,” the magistrate judge’s R&R had provided proper
notice that Tillman’s claim would be characterized as a recognized
cause of action to provide the court with jurisdiction. Doc. 9 at 3.4
The district court ruled that Tillman had failed to state a Bivens
claim because there was no recognized Bivens remedy in this con-
text. Nor did he state a claim under the FTCA because he failed to
raise an equivalent claim under state law. The court adopted the
magistrate judge’s R&R and dismissed Tillman’s complaint.
Tillman filed this appeal.
II. STANDARD OF REVIEW
We review de novo a district court’s sua sponte dismissal
under
28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a viable claim,
using the same standards that govern dismissals under Federal Rule
of Civil Procedure 12(b)(6). Mitchell v. Farcass,
112 F.3d 1483, 1490
(11th Cir. 1997). We accept the allegations in the complaint as true.
Id. To survive a Rule 12(b)(6) motion to dismiss, a complaint must
allege sufficient facts to state a claim that is plausible on its face.
Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). To be facially plausible,
the plaintiff must plead facts that allow the court to draw the
4 “Doc.” numbers refer to the district court’s docket entries.
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21-11471 Opinion of the Court 7
reasonable inference that the defendant is liable for the misconduct
alleged.
Id.
III. DISCUSSION
We affirm the district court’s dismissal of Tillman’s com-
plaint on two grounds, each sufficient on its own to support dismis-
sal. First, although Tillman is proceeding pro se and we thus must
construe his pleadings liberally, he did not challenge the district
court’s dismissal in his briefing in more than a perfunctory manner
and therefore has abandoned this issue on appeal. Second, even if
he had not abandoned the issue, he failed to state a claim in his
complaint because he provided insufficient facts or allegations to
add up to a Bivens or an FTCA claim. We address each issue in
turn.
A. Abandonment on Appeal
A document filed pro se must be liberally construed. Alba v.
Montford,
517 F.3d 1249, 1252 (11th Cir. 2008). We do not act as a
party’s attorney, however, nor do we rewrite a pleading to help the
party sustain an action. Campbell v. Air Jamaica Ltd.,
760 F.3d
1165, 1168–69 (11th Cir. 2014). Issues not briefed on appeal, even
by pro se appellants, are deemed abandoned. Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008). An appellant abandons a claim
when he makes only passing references to it or raises it in a per-
functory manner without supporting arguments and authority.
Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681 (11th Cir.
2014).
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8 Opinion of the Court 21-11471
Tillman has abandoned any challenge to the district court’s
ruling that his complaint failed to state a viable claim. Although
Tillman states in his brief that the district court abused its discre-
tion, he argues only that he provided sufficient documentary evi-
dence to the district court to prove that Lawrimore engaged in
fraud in violation of federal law. He fails to argue that the district
court erred by misconstruing his complaint or by concluding that
it did not state a viable Bivens or FTCA claim. Moreover, Tillman
does not argue that the allegations in his complaint supported a
different type of claim.
He argues instead that the district court dismissed his com-
plaint “by using technicalities.” Appellant’s Br. at 2 (emphasis omit-
ted). This single sentence is insufficient to raise the issue of whether
the district court erred in concluding that his complaint failed to
state a claim. “Any issue that an appellant wants the Court to ad-
dress should be specifically and clearly identified in the brief. . . .
Otherwise, the issue . . . will be considered abandoned.” Access
Now, Inc. v. Southwest Airlines Co.,
385 F.3d 1324, 1330 (11th Cir.
2004) (internal quotation marks omitted). Tillman did not clearly
identify the district court’s error, nor did he “advanc[e] any argu-
ments or cit[e] any authorities” to explain why it was error.
Sapuppo, 739 F.3d at 681. Accordingly, he has abandoned any chal-
lenge to the dismissal of his complaint. See id. at 680–82. This alone
provides a basis to affirm the district court’s dismissal.
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21-11471 Opinion of the Court 9
B. Failure to State a Claim
Even if Tillman had not abandoned his challenge to the com-
plaint’s dismissal, the district court did not err in dismissing the
complaint because it failed to state a claim: it lacked facts that
matched up with a cognizable legal claim. The district court, liber-
ally construing the complaint, characterized it as making out either
a Bivens claim or an FTCA claim. Tillman’s complaint also might
have alleged a violation of
18 U.S.C. § 1001. But none of these
claims was sufficiently supported by factual allegations.
To properly state a claim, the plaintiff must include enough
facts to allow the court to “draw the reasonable inference” that the
defendant committed actionable misconduct. See Ashcroft,
556
U.S. at 678. For a Bivens claim, the plaintiff must allege that a fed-
eral officer, using federal authority, violated the plaintiff’s constitu-
tional rights. See Bivens,
403 U.S. at 397. The plaintiff must also
show that he has no other way to obtain relief, and that there are
no “special factors” that might make a court hesitate to award
money damages. Hardison v. Cohen,
375 F.3d 1262, 1264 (11th Cir.
2004).
Tillman’s complaint did not include any of these elements.
True, the district court can discern from the complaint that Law-
rimore is a federal probation officer acting with federal authority,
but Tillman’s complaint does not identify any constitutional rights
that Lawrimore allegedly violated. Because the complaint lacked
this information, it failed to state a claim for relief. See Stevens v.
Osuna,
877 F.3d 1293, 1309–10 (11th Cir. 2017) (affirming dismissal
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10 Opinion of the Court 21-11471
of the plaintiff’s Bivens claims because they alleged that the defend-
ant had merely committed “various alleged wrongs” instead of
constitutional violations). Thus, we affirm the district court’s dis-
missal under
28 U.S.C. § 1915(e)(2)(B)(ii).
Tillman also failed to state a claim under the FTCA. The
FTCA “was designed primarily to remove the sovereign immunity
of the United States from suits in tort.” Millbrook v. United States,
569 U.S. 50, 52 (2013) (internal quotation marks omitted). The
FTCA gives federal courts exclusive jurisdiction over claims against
the United States for “injury or loss of property . . . caused by the
negligent or wrongful act or omission” of a federal employee “act-
ing within the scope of his office or employment.”
28 U.S.C.
§ 1346(b)(1).
The FTCA does not create a substantive cause of action
against the United States but rather provides a mechanism by
which a plaintiff may bring a state law tort action against the federal
government, in federal court. See Stone v. United States,
373 F.3d
1129, 1130 (11th Cir. 2004). Under the FTCA, the United States is
subject to liability in a tort action in the same manner, and to the
same extent, that a private individual would be under the law of
the place where the tort occurred. See
28 U.S.C. § 1346(b)(1). Im-
portantly, “unless the facts support liability under state law, the dis-
trict court lacks subject matter jurisdiction to decide an FTCA
claim.” Ochran v. United States,
273 F.3d 1315, 1317 (11th Cir.
2001).
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21-11471 Opinion of the Court 11
The district court did not err in concluding that Tillman’s
FTCA claim failed. There is no tort liability under state law for
Lawrimore’s conduct—denying a transfer request from a person
on federal supervised release to move from one state to another—
even if the denial was based on false information. See
28 U.S.C.
§ 1346(b)(1); Zelaya v. United States,
781 F.3d 1315, 1323 (11th Cir.
2015) (explaining that the federal government is not liable “absent
a showing by the plaintiff that a private individual who had acted
as did the federal employee, in like circumstances, would be liable
for the particular tort under governing state law where the tort oc-
curred”). We affirm the district court’s dismissal on this ground.
Under a liberal reading of the complaint, Tillman also al-
leged that Lawrimore falsified information in violation of a federal
criminal law. But this allegation, too, is insufficient to state a claim.
In his letter denying Tillman’s transfer request, Lawrimore stated
that the apartment complex where Tillman planned to live did not
allow people with felony convictions to reside there. Tillman of-
fered an email from the leasing agent that contradicted Law-
rimore’s statement. The agent said that she had told the probation
officers that Tillman’s “background check came back clear, and [he
was] approved to live [t]here.” Doc. 1-1 at 5. The complaint alleged
that the leasing agent’s statement is “in direct conflict” with Law-
rimore’s statement and then cited to
18 U.S.C. § 1001.
Id. at 2–3.
Tillman seems to have alleged that Lawrimore’s statement
violated the statute’s prohibition on knowingly making false state-
ments to the federal government. But it did not.
18 U.S.C. § 1001 is
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12 Opinion of the Court 21-11471
a criminal statute; violators can be fined or imprisoned. 18. U.S.C.
§ 1001(a). Thus, only the government can charge someone with a
violation of the statute. Tillman cannot use it in a civil suit against
his probation officer. See Adventure Outdoors, Inc. v. Bloomberg,
552 F.3d 1290, 1303 (11th Cir. 2008) (noting that federal law does
not create a “private right of action any time a civil plaintiff” alleges
the violation of a federal criminal statute). Under this theory, too,
it was not error for the district court to dismiss Tillman’s complaint
for failure to state a claim.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court.
AFFIRMED
