Brian Bevan v. Lee County SO , 213 F. App'x 824 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 5, 2007
No. 06-12067 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00500-CV-FTM-29-SPC
BRIAN BEVAN,
Plaintiff-Appellant,
versus
LEE COUNTY SO,
KENNETH ERNE, individually,
MARK DURLING, individually,
HARVEY HUDNALL, individually,
FRED BOND, individually,
RICHARD TRAVIS COWART, individually,
CLAUDIA COWART, individually,
JACKIE COWART, individually,
SOUTHWEST UTILITY SYSTEMS, INC.,
a Florida Corporation, et al.,
Defendants-Appellees,
ROD SHOAP, in his individual capacity and in
his official capacity as Sheriff of Lee County,
Defendant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 5, 2007)
Before ANDERSON, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Brian Bevan, proceeding pro se, appeals the district court’s final orders and
the jury verdict in his suit against (1) Richard, Claudia, and Jackie Cowart; (2)
Southwest Utilities Systems, Inc. (“Southwest”) and (3) nine deputies and the
Sheriff of the Lee County’s Sheriff’s Office (“LCSO”). Bevan’s complaint alleged
a violation of his Fourth Amendment rights under 42 U.S.C. § 1983 based on the
removal of his trailer, mailbox, fence, gate, and tropical trees from disputed land.
The district court entered summary judgment on his claims against Claudia
Cowart, Jackie Cowart, and Southwest. It dismissed his claims against the law
enforcement defendants for failure to comply with discover orders. Ultimately,
Bevan tried only the Fourth Amendment and assault claims against Richard
Cowart. The jury found in favor of Cowart on both claims.
On appeal, Bevan argues that (1) the magistrate judge erred by not recusing
herself because she was biased. He also argues that the district court erred by
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adopting the extreme sanction of dismissing his claims against the law enforcement
officers with prejudice, when his failure to comply with discovery requests was not
willful and there was no longer a danger of prejudice. Furthermore, he contends
that (3) the district court erred in granting summary judgment on the claims
against Jackie Cowart, Claudia Cowart, Southwest, and the law enforcement
defendants. He argues that (4) there was sufficient evidence to support a finding
that Richard Cowart and Claudia Cowart violated the Fourth Amendment and (5)
the district court committed plain error by not instructing the jury as to the
meaning of “seizure.” Finally, Bevan argues that (6) the court erred in allowing
the jury alternate and a juror whom taught criminal justice to participate in the
deliberations and verdict.
I.
Bevan first argues that the magistrate judge erred in not recusing herself
because (1) her rulings showed a pattern of harassment; and (2) she was biased
because “she knew about his intention to reveal her criminal activities.” We
review the denial of a motion for recusal for abuse of discretion. United States v.
Bailey, 175 F.3d 966, 968 (11th Cir. 1999)(per curiam). Under this standard, we
affirm a judge’s refusal to recuse herself unless we “conclude that the impropriety
is clear and one which would be recognized by all objective, reasonable persons.”
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Id. Recusal is necessary when a judge’s “impartiality might reasonably be
questioned.” 28 U.S.C. 455(a). When a judge’s challenged actions “consist of
judicial rulings, routine trial administration efforts, and ordinary admonishments
(whether or not legally supportable) to counsel and to witnesses,” these actions do
not require recusal absent a showing of unequivocal antagonism or the judge’s
reliance on knowledge acquired outside the proceedings. Liteky v. United States,
510 U.S. 540, 556, 114 S. Ct. 1147, 1158, 127 L. Ed. 2d 474 (1994).
Here, the magistrate judge did not abuse her discretion by failing to recuse
herself because Bevan failed to establish that the magistrate judge had any personal
bias. There is no evidence that the magistrate judge knew of his attempts to expose
alleged criminal activity, or that such knowledge had any affect on her rulings.
The only challenged actions were recommendations and rulings made in the course
of judicial proceedings, and there was nothing in the magistrate judge’s report to
cause an objective observer to doubt the judge’s impartiality. See United States v.
Patti, 337 F.3d 1317, 1321 (11th Cir. 2003)(explaining the standard of review).
II.
Bevan also appeals the district court’s dismissal of his complaint against the
law enforcement defendants, arguing that he did not willfully disregard discovery
orders and any prejudice that resulted from his failure to comply was cured before
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the district court entered its order. The district court has broad discretion to
impose sanctions under Fed. R. Civ. P. 37, and we review only for an abuse of
discretion. United States v. Certain Real Property Located at Route 1, Bryant, Ala,
126 F.3d 1314, 1317 (11th Cir. 1997). Still, the dismissal of a claim should be
used only when “noncompliance with discovery orders is due to willful or bad faith
disregard for those orders.” Id.Here, the district court did not abuse its discretion in finding Bevan’s
noncompliance was willful or the result of bad faith. Bevan failed to file responses
to interrogatories until after the magistrate judge recommended dismissing his
complaint, and even then, the responses were inadequate. Bevan refused to answer
basic questions including requests to describe in detail how the April 31, 1999
incident happened, describe in detail each act or omission on the part of the each
individual defendant that constituted a violation of his civil rights, and provide the
factual basis for his claims. By failing to provide the factual basis for his claims,
Bevan prevented law enforcement defendants from obtaining information essential
to preparing their defense.
Bevan’s failure to answer was willful given he had access to the necessary
information and still failed to timely respond. Although Bevan now claims he was
unable to obtain documents necessary to answer due to his former attorney, he
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never made such a claim before the magistrate judge recommended dismissal.
Furthermore, Bevan admits that the defendants could have gotten their answers by
deposing him, demonstrating that he had the needed information.
The court warned Bevan that he would be required to comply with court
rules despite his pro se status, and Bevan still willfully refused to comply with
discovery orders even though he was able to do so. The district court, then, did not
abuse its discretion in dismissing the complaint against the law enforcement
defendants.
III.
Next, Bevan challenges the grant of summary judgment in favor of Claudia
Cowart, Jackie Cowart, and Southwest. He also challenges the order of summary
judgment in favor of the law enforcement officers based on sovereign immunity;
however we need not address this claim because the dismissal of the complaint
against them was proper under Fed. R. Civ. P. 37. We review grants of summary
judgment de novo. Mercado v. Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005).
Summary judgment is appropriate when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Id. At this stage,
the facts are viewed in the light most favorable to the non-moving party, Bevan. Id.The district court did not err in granting summary judgment to Jackie
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Cowart and Claudia Cowart. Bevan produced no evidence that Jackie was
involved in Richard Cowart’s removal of Bevan’s trailer, gate, tropical trees,
mailbox, or fence. See Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986)
(holding that a § 1983 claim requires proof of an affirmative causal connection
between the defendant’s act and the alleged constitutional deprivation). Similarly,
he produced no evidence that Claudia was present when Bevan’s trailer was
removed or that she instructed anyone to remove the trailer. Because Bevan
produced no evidence linking Jackie or Claudia to his alleged constitutional
deprivation, there was no disputed issue of fact and summary judgment was
appropriate.
Because Robert and Claudia Cowart were joint owners of Southwest and its
equipment was used in the destruction of Bevan’s property, Bevan asserted a
Fourth Amendment claim against the company based on respondeat superior. The
district court properly granted summary judgment on these claims because an
employer cannot be held liable under § 1983 for its employees’ actions under a
theory of respondeat superior or vicarious liability. Harvey v. Harvey, 949 F.2d
1127, 1129 (11th Cir. 1992).
IV.
Bevan argues that the district court erred in not finding Richard and Claudia
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Cowart liable under the decision in Soldal v. Cook County, 506 U.S. 56, 113 S. Ct.
538, 121 L. Ed. 2d 450 (1992). Given this decision, he argues that there was
enough evidence to support a finding in his favor. Because the district court
properly granted summary judgment on the claims against Claudia Cowart, we
address this argument only as it pertains to Richard Cowart. The question on
review, however, is not whether there was enough evidence to hold Cowart liable,
but rather was there enough evidence to support the jury verdict. “We will not
second-guess the jury or substitute our judgment for its judgment if its verdict is
supported by sufficient evidence.” Gupta v. Florida Bd. Of Regents, 212 F.3d 571,
582 (11th Cir. 2000). When, as here, the movant has failed to move for a directed
verdict at the close of evidence, our review is limited to plain error. Little v.
Bankers Life & Cas. Co., 426 F.2d 509, 511 (5th Cir. 1970).
To prevail in his § 1983 claim, Bevan needed to show that he was deprived
of a federal right by a person acting under the color of state law. Griffin v. City of
Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). In order for Cowart, a private
party, to be considered a “state actor,” one of three conditions must be met: (1) the
state has coerced or at least significantly encouraged the action alleged to violate
the Constitution (state compulsion test); (2) the private party performed a public
function that was traditionally the exclusive prerogative of the state (public
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function test); or (3) the state had so far insinuated itself into a position of
interdependence with the private party that it was a joint participant in the
enterprise (nexus/joint action test). Rayburn ex rel. Rayburn v. Hogue, 241 F.3d
1341, 1347 (11th Cir. 2001). The mere presence of officers to keep the peace does
not constitute state action. See Cofield v. Randolph County Comm., 90 F.3d 468,
472 (11th Cir. 1996).
Here, the evidence supports that Richard Cowart was not acting under the
color of state law when he removed the trailer from the disputed land. The
evidence showed that only Cowart and his employees removed chattels from the
disputed land. Law enforcement did not participate in the removal and stated
several times that they were present only to keep the peace. The evidence also
supported a finding that the Sheriff’s Office contacted a hauling company to
remove the trailer only after it had left private property and was blocking the right
of way. Finally, this case is distinguishable from Soldal. In Soldal, officers
prevented Soldad from using reasonable force to protect his home against an
eviction the officers knew was illegal. 506 U.S. at 60. Here, Cowart told officers
he had a court order allowing him to take action. Thus, the officers were not
enabling clearly unlawful actions. Given the evidence, the jury did not plainly err
in failing to hold Cowart liable under the Fourth Amendment.
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V.
Bevan contends that the district court never instructed the jury on the
meaning of “seizure” and erred by not including a reference to Soldal v. Cook
County. Bevan raised this issue at trial by requesting the instruction. “We review
jury instructions de novo to determine whether they misstate the law or mislead the
jury to the prejudice of the objecting party.” Palmer v. Bd. of Regents of Univ. Sys.
of Ga., 208 F.3d 969, 973 (11th Cir. 2000).
Bevan’s arguments are without merit since the district court explained the
term “seizure” after closing arguments and there was no error in its instruction. The
court instructed the jury that a seizure occurs when “there is some meaningful
interference with an individual’s possessory interest in personal property.” The
court further explained that a seizure violates the Fourth Amendment only if it is
unreasonable under all the facts and circumstances, and the seizure occurred under
color of state law. The court noted that “[a]cts of private citizens may be
considered to have been done under color of state law where the action of the
Sheriff’s deputies constituted more than mere presence to keep the peace, and the
defendant acted as a willful participant, in joint activity with the Sheriff’s deputies
in the unlawful action.” The court is not required to reference particular cases and
this instruction does not misstate the law or mislead the jury. Thus, we can find no
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reversible error in the jury instructions given.
VI.
Finally, Bevan argues that the district court erred in denying his motion for
new trial because an alternate juror and a criminal justice teacher participated in
jury deliberations and the verdict. We lack the subject matter jurisdiction to
consider these claims because a final order was not issued before Bevan made his
appeal. We are obligated to inquire into subject-matter jurisdiction whenever it
may be lacking. Chacon-Botero v. United States Att’y Gen., 427 F.3d 954, 956
(11th Cir. 2005) (per curiam). We review de novo whether we have subject-matter
jurisdiction. Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002). An appeal
from a final judgment brings up for review all preceding non-final orders. See e.g.,
Kirkland v. Nat’l Mortgage Network, Inc., 884 F.2d 1367, 1370 (11th Cir. 1989).
Conversely, an appeal does not bring up for review any final orders that were
entered subsequent to the filing of the notice of appeal. See LaChance v. Duffy’s
Draft House, 146 F.3d 832, 838 (11th Cir. 1998). After the district court denied
his motion for new trial, Bevan did not file an additional notice of appeal or amend
his previous notice. Further he did not file his brief indicating his desire to appeal
these issues within 30 days of the district court’s order. Accordingly, we lack
jurisdiction to consider these claims.
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VII.
After careful review of the parties’ arguments and the record, we dismiss
Bevan’s appeal of the district court’s denial of his motion for a new trial, and we
find no reversible error in the district court’s other orders. Furthermore, there was
sufficient evidence to support the jury’s verdict. Therefore we dismiss in part and
affirm in part.1
DISMISSED IN PART, AFFIRMED IN PART.
1
Appellant’s motion to file an addendum to the record excerpts is granted.
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