Mel Abele v. Grant Tolbert , 241 F. App'x 612 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 18, 2007
No. 07-10302 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-01883-CV-T-26-TGW
MEL ABELE,
Plaintiff-Appellant,
versus
GRANT TOLBERT,
RON ALIFF,
DOES,
Does: One, Two, Three,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 18, 2007)
Before TJOFLAT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Mel Abele appeals pro se the summary judgment in favor of Ron Aliff and
Grant Tolbert and against Abele’s complaint that his right to procedural due
process was violated when Aliff and Tolbert caused Abele’s property to be
demolished. See 42 U.S.C. § 1983. Because Abele is collaterally estopped from
relitigating this issue, we affirm the order of the district court.
I. BACKGROUND
Before Abele commenced the present litigation, Abele filed in February
2004 a civil action against Hernando County, Michael Anzalone, Aliff, and
Tolbert. Tolbert and Aliff were dismissed without prejudice in July 2004 due to
improper service of process. See Fed. R. Civ. P. 4(m). The Hernando County
action alleged (1) a claim under the Contract Clause, (2) a due process claim, (3) a
RICO claim, and (4) various claims under state law. Abele’s claims in the
Hernando County action arose from the same transactions and occurrences on
which Abele bases the claims in the present action against Aliff and Tolbert,
including the demolition of a structure located at 8023 Winter Street. The district
court in the Hernando County action entered summary judgment against Abele’s
federal claims and declined to exercise supplemental jurisdiction over his state law
claims. Among other things, the district court determined that there was no
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violation of Abele’s right to procedural due process. Abele appealed the decision
of the district court. On appeal, we affirmed. We concluded that, because there
were adequate state remedies available to Abele with respect to each of the alleged
property deprivations, Abele’s right to procedural due process was not violated.
After Tolbert and Aliff were dismissed from the Hernando County action,
Abele commenced this action against Tolbert and Aliff in August 2004 and alleged
(1) a RICO conspiracy to confiscate various properties located in Hernando
County, (2) trespass without due process of law at 8023 Winter Street, (3) an
unlawful denial of a building permit, (4) a taking of Abele’s property at 8023
Winter Street “without any legal notice as required by law, and without any court
order,” (5) removal of electric meters at certain properties, and (6) unlawful
destruction of a sailboat. The district court sua sponte dismissed Abele’s
complaint for lack of subject matter jurisdiction. On appeal, we reversed and
concluded that Abele’s complaint raised the following three federal questions: (1)
whether the defendants violated RICO, (2) whether the defendants violated Abele’s
constitutional right to due process of law; and (3) whether the defendants violated
the Takings Clause of the Fifth and Fourteenth Amendments to the Constitution.
On remand, the district court instructed Abele to file an amended complaint and
then sua sponte dismissed Abele’s first amended complaint because it was a
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“‘quintessential shotgun pleading’ of the type that the Eleventh Circuit Court of
Appeals has repeatedly condemned.” Abele then amended his complaint again.
In his second amended complaint, Abele alleged (1) “Aliff, et al”
demolished Abele’s property at 8023 Winter Street “without any legal notice as
required by Federal and States Statutes” and “the ‘agency’ failed to grant the bare
essentials of law” and violated protections guaranteed by the Florida and Federal
Constitutions when it failed to seek injunctive relief as required by state law; (2)
Aliff wrongly denied, under state law, a building permit for a property Abele sold;
and (3) Aliff and Tolbert violated various state laws and RICO when, without
proper notice or court orders, they ordered the removal of the electric meter from a
mobile home on property zoned for agricultural use. Aliff and Tolbert moved to
dismiss the second amended complaint for failure to state a claim upon which
relief can be granted. See Fed. R. Civ. P. 12(b)(6). The district court concluded
that Abele failed to state a claim under RICO and dismissed that claim with
prejudice. The district court determined that Abele’s remaining allegations sought
“relief solely pursuant to Florida law” and dismissed them without prejudice after
declining to exercise supplemental jurisdiction.
Abele again sought our review. On appeal, we affirmed the dismissal of the
RICO claim but concluded that another count of the second amended complaint,
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“construed liberally, states a claim that the defendants destroyed one or more of
Abele’s properties or homes without notice or a hearing – i.e., that the defendants
violated Abele’s right to procedural due process.” We remanded the case for
further action consistent with our decision.
After discovery, Aliff and Tolbert moved for summary judgment, and the
district court granted their motion. The district court determined that the statute of
limitations barred any claims that accrued before August 16, 2000. The district
court also concluded that, to the extent Abele’s complaint sought relief against
Aliff and Tolbert in their official capacities, it was barred by res judicata based on
the Hernando County action, and to the extent the complaint sought relief against
Aliff and Tolbert in their individual capacities, Aliff and Tolbert were entitled to
qualified immunity. Finally, the district court concluded that there was no
violation of Abele’s right to substantive or procedural due process. Abele
appealed.
II. STANDARD OF REVIEW
We review a summary judgment de novo, and we resolve all issues of
material fact in favor of the nonmoving party. Cuvillier v. Rockdale County, 390
F.3d 1336, 1338 (11th Cir. 2004).
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III. DISCUSSION
Although the district court based its decision on res judicata, to the extent
Aliff and Tolbert were sued in their official capacities, and qualified immunity, to
the extent suit was brought against them in their individual capacities, collateral
estoppel bars Abele’s complaint regardless of the capacity of the defendants. We
can affirm on any ground supported by the record. Koziara v. City of Casselberry,
392 F.3d 1302, 1306 n.2 (11th Cir. 2004), and collateral estoppel bars relitigation
of an issue that has previously been litigated and resolved. “To claim the benefit of
collateral estoppel the party relying on the doctrine must show that: (1) the issue at
stake is identical to the one involved in the prior proceeding; (2) the issue was
actually litigated in the prior proceeding; (3) the determination of the issue in the
prior litigation must have been “a critical and necessary part” of the judgment in
the first action; and (4) the party against whom collateral estoppel is asserted must
have had a full and fair opportunity to litigate the issue in the prior proceeding.”
Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1359 (11th Cir. 1998).
All of the elements of collateral estoppel are present. Whether Abele’s right
to procedural due process was violated when the Winter Street property was
demolished was actually litigated in the Hernando County action and decided
against Abele by both this Court and the district court. The determination that
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Abele’s right to procedural due process was not violated was a “critical and
necessary” part of the judgment in the Hernando County action and Abele had a
full and fair opportunity to litigate the issue in the earlier action. Because the issue
whether the demolition of the 8023 Winter Street property deprived Abele of his
right to procedural due process has previously been litigated and decided against
him, Abele is precluded from relitigating that issue.
IV. CONCLUSION
The summary judgment in favor of Aliff and Tolbert is
AFFIRMED.
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