Ronald Micklas v. Carol-Lisa Phillips ( 2013 )

Case: 12-15063 Date Filed: 06/21/2013 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15063
Non-Argument Calendar
________________________
D.C. Docket No. 0:12-cv-61010-RNS
RONALD MICKLAS,
Plaintiff-Appellant,
versus
CAROL-LISA PHILLIPS,
LISA WHITE,
J. ROBERT MIERTSCHIN, JR.,
J. DOE #2 CLERK,
FRED A. HAZOURI, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 21, 2013)
Case: 12-15063 Date Filed: 06/21/2013 Page: 2 of 7
Before DUBINA, Chief Judge, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Ronald Micklas, proceeding pro se, appeals the district court’s
dismissal, pursuant to 28 U.S.C. § 1915(e)(2)(B), of his amended complaint
asserting various claims under 42 U.S.C. § 1983 and Florida state law against
Florida state circuit court judge Carol-Lisa Phillips; Florida Fourth District Court
of Appeals judges Fred A. Hazouri, Jonathan D. Gerber, and Burton C. Conner; the
Clerk of Court for the Florida Seventeenth Judicial Circuit Court Howard Forman;
private attorneys Lisa White and J. Robert Miertschin, Jr., and unknown Broward
County clerks. Micklas’s present complaint arose from a civil lawsuit Micklas
brought in Florida’s Seventeenth Judicial Circuit, which was dismissed by state
court Judge Phillips upon motion by the defendant’s attorney, White. Florida
appellate Judges Hazouri, Gerber, and Conner affirmed the circuit court’s order of
dismissal.
In his federal complaint, Micklas asserted § 1983 claims against Judges
Phillips, Hazouri, Gerber, and Conner, for violating his procedural and substantive
due process rights under the Fourteenth Amendment. Micklas also brought a
§ 1983 conspiracy claim against White, and various state law claims against White
and her employer, Miertschin. Micklas brought a § 1983 procedural due process
claim against Forman, and state law claims for retaliation and gross negligence.
2
Case: 12-15063 Date Filed: 06/21/2013 Page: 3 of 7
The gross negligence claim was against Forman in his individual and official
capacity, and all other claims against Forman were in his individual capacity.
Micklas also sued unknown Broward County clerks in their individual capacities
for theft, fraud, and extortion under Florida state law. The district court dismissed
Micklas’s complaint with prejudice under 28 U.S.C. § 1915(e)(2)(B). The district
court concluded that all of Micklas’s claims were either frivolous, failed to state a
plausible claim for relief, or were brought against defendants who were immune.
On appeal, Micklas argues that the district court erred in dismissing his
complaint because, since it had not yet ruled on his in forma pauperis motion, it
lacked jurisdiction for a 28 U.S.C. § 1915 dismissal. Moreover, he contends that
the district court applied the wrong legal standard in dismissing his complaint as
meritless because in forma pauperis complaints can only be dismissed as frivolous
or malicious. Finally, Micklas asserts that the district court erred by dismissing
his claims based on sovereign and judicial immunity grounds.
Section 1915(e)(2)(B) provides that, for parties proceeding in forma
pauperis, “the court shall dismiss the case at any time if the court determines that
the action or appeal is (i) frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). We review de novo
a dismissal for failure to state a claim pursuant to § 1915(e)(2)(B)(ii), and view the
3
Case: 12-15063 Date Filed: 06/21/2013 Page: 4 of 7
allegations in the complaint as true. Mitchell v. Farcass, 112 F.3d 1483, 1490
(11th Cir. 1997). A dismissal under § 1915(e)(2)(B)(ii) is governed by the same
standard as a dismissal under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Id. Dismissal for failure to state a claim is appropriate if the facts as
pleaded fail to state a claim for relief that is “plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (internal
quotation marks omitted).
Judges are entitled to absolute immunity for all actions taken in their judicial
capacity, except where there is a “clear absence of all jurisdiction.” Bolin v. Story,
225 F.3d 1234, 1239 (11th Cir. 2000) (internal quotation marks omitted). Absolute
judicial immunity “applies even when the judge’s acts are in error, malicious, or
were in excess of his or her jurisdiction.” Id.“Under the Eleventh Amendment, state officials sued for damages in their
official capacity are immune from suit in federal court.” Jackson v. Georgia Dep’t
of Transp., 16 F.3d 1573, 1575 (11th Cir. 1994). However, state officials sued in
their individual capacities for employment-related acts are not protected by the
Eleventh Amendment. Id. To establish a § 1983 claim alleging a denial of
procedural due process, a plaintiff must show three elements: “(1) a deprivation of
a constitutionally-protected liberty or property interest; (2) state action; and (3)
4
Case: 12-15063 Date Filed: 06/21/2013 Page: 5 of 7
constitutionally-inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232
(11th Cir. 2003).
As a preliminary matter, the record demonstrates that Micklas has not
challenged the district court’s dismissal of his claims against Lisa White on the
basis of frivolousness and failure to state a claim. Therefore, we conclude that he
has abandoned any argument with respect to these claims. Denney v. City of
Albany, 247 F.3d 1172, 1182 (11th Cir. 2001) (deeming issues not briefed on
appeal as abandoned). Micklas has also abandoned any argument he had with
respect to White’s employer, Miertschin. Id.Micklas’s argument that the district court lacked jurisdiction to dismiss his
complaint pursuant to § 1915 because it had not yet ruled on his motion to proceed
in forma pauperis is unavailing. Section 1915 does not state that a court must
grant in forma pauperis status prior to dismissing a case for frivolousness or failure
to state a claim. See 28 U.S.C. § 1915. In fact, it provides that if a court
determines that the action is frivolous, malicious, fails to state a claim or seeks
monetary damages from an immune defendant, the court shall dismiss the case “at
any time.” 28 U.S.C. § 1915(e)(2). The statute further provides that a federal
court action may be commenced or prosecuted upon an affidavit of indigence (not
upon the granting of a motion for in forma pauperis status). See 28 U.S.C.
§ 1915(a)(1).
5
Case: 12-15063 Date Filed: 06/21/2013 Page: 6 of 7
Likewise, Micklas’s argument that the district court applied the incorrect
legal standard for § 1915(e)(2)(B) dismissals is meritless. The district court
correctly concluded that it was permitted to dismiss Micklas’s complaint if it failed
to state a claim, and that the Rule 12(b)(6) standard applies. See 28 U.S.C.
§ 1915(e)(2)(B)(ii); Farcass, 112 F.3d at 1490.
As to Micklas’s claims against Judges Phillips, Hazouri, Gerber, and
Conner, we conclude that the district court properly dismissed those claims on
judicial immunity grounds. All actions taken by Judges Phillips, Hazouri, Gerber,
and Conner were taken in their judicial capacity, and Micklas’s conclusory
allegations that they acted without jurisdiction does not establish that they acted in
the “clear absence of jurisdiction.” See Bolin, 225 F.3d at 1239.
With respect to Micklas’s claims against Forman and the unknown Broward
County clerks, the district court erred in concluding that Forman and the clerks
were entitled to Eleventh Amendment immunity because, other than Micklas’s
gross negligence claim against Forman in his official capacity, the complaint is
clear that Micklas is suing Forman and the clerks in their individual capacities.
Jackson, 16 F.3d at 1575 (explaining that state officials sued in their official
capacities are protected by Eleventh Amendment immunity, whereas officials sued
in their individual capacities are not). However, we can affirm on any ground
supported by the record, and we conclude from the record here that Micklas’s
6
Case: 12-15063 Date Filed: 06/21/2013 Page: 7 of 7
claims fail to state a plausible claim for relief. Cochran v. United States Health
Care Fin. Admin., 291 F.3d 775, 778 n.3 (11th Cir. 2002).
Micklas brought a § 1983 claim against Forman, and various state law
claims against Forman and the unknown Broward County clerks. Micklas’s
§ 1983 claim alleged that Forman violated Micklas’s procedural due process rights
because someone in the clerk’s office required that he furnish two self-addressed
stamped envelopes before filing a motion for default, which delayed him from
filing the motion before the defendant entered its appearance in the case. Micklas
cannot state a cognizable due process claim because, among other things, he had
no constitutionally-protected liberty interest in being able to file a motion for
default without envelopes or before the defendant entered an appearance. A
review of Micklas’s remaining state law claims against Forman and the unknown
Broward County Clerks for sending him a jury duty summons, requiring him to
pay a case re-opening fee for a post-judgment motion, and for not timely
processing case filings, reveals that they, too, fail to state a plausible claim upon
which relief may be granted. Accordingly, we affirm the district court’s judgment
of dismissal of Micklas’s complaint.
AFFIRMED.
7