Case: 18-10807 Date Filed: 10/23/2018 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-10807
Non-Argument Calendar
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D.C. Docket No. 6:17-cv-01396-RBD-KRS
BARRY DAVID THOMPSON,
Plaintiff-Appellant,
versus
DEPUTY BRIAN LUOMA,
Badge 2513,
VOLUSIA COUNTY SHERIFF'S OFFICE,
individual capacity,
DEPUTY SUPERVISOR,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(October 23, 2018)
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Before WILLIAM PRYOR, MARTIN and JILL PRYOR, Circuit Judges.
PER CURIAM:
Barry David Thompson appeals pro se the dismissal of his complaint against
the Volusia County Sheriff’s Office, Deputy Sheriff Brian Luoma, and an unnamed
officer. See
42 U.S.C. § 1983. He also appeals the denial of his two motions to
alter or amend the judgment and his motion for clarification. See Fed. R. Civ. P.
59(e). We affirm.
The district court sua sponte dismissed Thompson’s complaint as barred
under Heck v. Humphrey,
512 U.S. 477 (1994), because his challenges to his traffic
stop and ensuing seizure of drugs would necessarily imply the invalidity of his
convictions following his pleas of guilty to trafficking in hydromorphone and
trespassing on school property. See 28 U.S.C. § 1915A(a). Later, the district court
denied Thompson’s motion to alter or amend the judgment with the explanation
that, although “a question exists whether Heck applies in certain circumstances,”
its bar applied to Thompson because he “had an opportunity to pursue an appeal in
state court, and habeas relief was available to him prior to his release from state
custody.” The district court denied Thompson’s second motion to alter or amend
on the ground that Thompson was “attempting to relitigate old matters or raise new
arguments,” and the district court summarily denied Thompson’s motion for
clarification.
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We lack jurisdiction to review the dismissal of Thompson’s complaint or the
denial of his first motion to alter or amend the judgment. After the dismissal of his
complaint, Thompson timely filed a postjudgment motion within “28 days after the
entry of the judgment,” Fed. R. Civ. P. 59(e), that tolled his time to appeal until the
district court denied the motion on December 20, 2017, see Fed. R. App. P.
4(a)(4)(A)(iv). Thompson then had 30 days, or until January 19, 2018, to appeal.
See Fed. R. App. P. 4(a)(1)(a). On January 2, 2018, Thompson filed a second
motion to alter or amend, but that successive postjudgment motion “[did] not again
terminate the running of the time for appeal.” See Dixie Sand & Gravel Co., Inc. v.
Tenn. Valley Auth.,
631 F.2d 73, 75 (5th Cir. 1980). The notice of appeal that
Thompson filed on February 27, 2018, was timely only with respect to his second
motion to alter or amend and his motion for clarification.
The district court did not abuse its discretion when it denied Thompson’s
second motion to alter or amend the judgment. To obtain relief under Federal Rule
of Civil Procedure 59(e), a movant must identify “newly-discovered evidence [that
supports his claim] or manifest errors of law or fact” in the judgment. Arthur v.
King,
500 F.3d 1335, 1343 (11th Cir. 2007). Thompson moved the district court to
recognize an exception to Heck on the ground he could not have pursued “a
meaningful state appeal” because neither he nor any “of [his] witnesses . . . were
allowed to testify” and Officer Luoma gave “false testimony . . . that [Thompson]
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was on school property” during the “motion to suppress hearing.” But facts
pertaining to Thompson’s pretrial suppression hearing were not newly discovered
because they were available to him when he filed his complaint. See
id. (“A Rule
59(e) motion cannot be used to relitigate old matters, raise argument or present
evidence that could have been raised prior to the entry of judgment.”).
Thompson has abandoned any challenge that he could have made to the
denial of his motion for clarification. “While we read briefs filed by pro se litigants
liberally, issues not briefed on appeal by a pro se litigant are deemed abandoned.”
Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008) (citations omitted).
Because Thompson’s pro se brief does not mention his motion for clarification, we
deem abandoned any challenge he could have made to its summary denial.
We AFFIRM the dismissal of Thompson’s complaint.
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