Orvel Winston Lloyd v. Judge Robert Foster , 298 F. App'x 836 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-11253
October 30, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-00547-CV-J-25TEM
ORVEL WINSTON LLOYD,
Plaintiff-Appellant,
versus
JUDGE ROBERT FOSTER,
sued in his individual capacity,
GRANVILLE BURGESS,
sued in his individual capacity,
DARREN GARDNER,
sued in his individual capacity,
DEBIE HARRISON,
sued in her individual capacity,
CHIEF JAILER KING,
sued in his individual capacity, et al.,
Defendants-Appellees.
_______________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 30, 2008)
Before BIRCH, CARNES and HULL, Circuit Judges.
PER CURIAM:
Orvel Winston Lloyd, a state prisoner proceeding pro se, appeals the district
court’s judgment dismissing his civil rights action under 42 U.S.C. §§ 1983 and
1985 and denying his motions for default and summary judgment. Lloyd contends
that the district court erred by (1) granting the motions to dismiss filed by assistant
state attorneys Granville Burgess and Darren C. Gardner, Judge Robert Foster, and
the State of Florida based on prosecutorial, judicial, and Eleventh Amendment
immunities, respectively; (2) denying his motions for summary judgment before
Burgess, Gardner, Judge Foster, and the State of Florida offered responses;
(3) dismissing his complaint against jail administrator Richard King for failure to
exhaust available administrative remedies; (4) denying his motion for default
judgment against his former defense counsel Craig Williams and sua sponte
dismissing parole officer Debbie Harrison from the action based on improper
service of process; and (5) denying his motion for recusal. We affirm the judgment
of the district court as to asserted error numbers (1) through (4) above. We dismiss
for lack of jurisdiction asserted error number (5).
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I. BACKGROUND
[This case arises out of the events preceding Lloyd’s conviction for cocaine
possession, which we describe more fully in Lloyd v. Card, No. 07-14711 (11th
Cir. May 12, 2008). In Card Lloyd’s complaint asserted claims against the Nassau
County Sheriff, several deputies, an assistant state attorney, federal agents, and his
former defense counsel. Id. at 3-4. This time, Lloyd’s claims target two assistant
state attorneys, a state court judge, a parole officer, a Nassau County jail
administrator, a different former defense counsel, and the State of Florida. Lloyd
also directs an argument toward the district court judge.
II. DISCUSSION
We review pro se pleadings liberally, holding them to a less stringent
standard than those drafted by attorneys. Hughes v. Lott, 350 F.3d 1157, 1160
(11th Cir. 2003). However, the courts will not act as de facto counsel for pro se
parties. See GJR Invs., Inc. v. County of Escambia,132 F.3d 1359, 1369 (11th Cir.
1998).
Section 1983 provides a civil cause of action for “a claimant who can prove
that a person acting under color of state law committed an act that deprived the
claimant of some right, privilege, or immunity protected by the Constitution or
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laws of the United States.” Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th
Cir. 1995) (citing 42 U.S.C. § 1983).
A.
We “review de novo a district court’s dismissal under
[Fed.R.Civ.P.] 12(b)(6) for failure to state a claim, accepting the allegations in the
complaint as true and construing them in the light most favorable to the plaintiff.”
Behrens v. Regier, 422 F.3d 1255, 1259 (11th Cir. 2005) (internal quotation marks
omitted). The Supreme Court has noted that a complaint challenged pursuant to
Rule 12(b)(6) “does not need detailed factual allegations,” but:
a plaintiff's obligation to provide the “grounds” of his “entitlement to
relief” requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955, 1964-65 (2007)
(citations, brackets, and footnote omitted); see also Jackson v. BellSouth
Telecomms., 372 F.3d 1250, 1263 (11th Cir. 2004) (“To survive a motion to
dismiss, plaintiffs must do more than merely state legal conclusions; they are
required to allege some specific factual bases for those conclusions or face
dismissal of their claims.”). Moreover, “[c]onclusory allegations, unwarranted
deductions of facts or legal conclusions masquerading as facts will not prevent
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dismissal.” Jackson, 372 F.3d at 1262 (internal quotation marks omitted). A court
may “dismiss a complaint on a dispositive issue of law.” Day v. Taylor, 400 F.3d
1272, 1275 (11th Cir. 2005).
1. Prosecutorial Immunity
Lloyd contends that the district court erred when it granted Assistant State
Attorneys Burgess and Gardner immunity because they were not state officials by
oath when they initiated his prosecution and thus should be considered private
citizens not entitled to immunity. Lloyd argues that Burgess was not authorized to
sign the information used in Lloyd’s criminal prosecution when it was issued in
2002 and, as a result, wrongfully prosecuted him “in clear absence of all
jurisdiction.” In support of this argument, Lloyd offers a 2006 document in which
the State Attorney for Florida’s Fourth Judicial Circuit designates a group of
assistant state attorneys, Burgess among them, to sign informations. Finally, Lloyd
argues that Burgess and Gardner conspired to prosecute him on a bogus charge and
arranged to have a fraudulent search warrant issued to raid his house, where
evidence was planted. Burgess and Gardner maintain that prosecutorial immunity
bars Lloyd’s suit against them.
“[I]n initiating a prosecution and in presenting the State’s case, the
prosecutor is immune from a civil suit for damages under § 1983.” Imbler v.
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Pachtman, 424 U.S. 409, 431, 96 S. Ct. 984, 995 (1976). A prosecutor is entitled
to absolute immunity for all actions performed within the scope of the prosecutor’s
role as a government advocate, including “the initiation and pursuit of criminal
prosecution, and most appearances before the court, including examining witnesses
and presenting evidence.” Rivera v. Leal, 359 F.3d 1350, 1353 (11th Cir. 2004).
Indeed, a prosecutor is absolutely immune to suits for money damages unless the
acts or omissions giving rise to the plaintiff’s claim are outside the “scope and
territorial jurisdiction of his office.” Elder v. Athens-Clarke County, Ga., 54 F.3d
694, 695 (11th Cir. 1995). To determine whether a prosecutor’s challenged actions
fall within his role as advocate, courts must examine the function and nature of the
act, not merely the official title of the actor who performed it. Buckley v.
Fitzsimmons, 509 U.S. 259, 269, 113 S. Ct. 2606, 2613 (1993).
Florida Statute § 27.181(2) states:
Each assistant state attorney appointed by a state attorney shall have
all of the powers and discharge all of the duties of the state attorney
appointing him or her, under the direction of that state attorney. No
such assistant state attorney may sign informations unless specifically
designated to do so by the state attorney. He or she shall sign
indictments, informations, and other official documents, as assistant
state attorney, and, when so signed, such indictments, informations,
and documents shall have the same force and effect as if signed by the
state attorney.
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Fla. Stat. § 27.181(2). There is nothing in the record to support Lloyd’s claim that
Burgess and Gardner were not state officials “by oath.” Although the 2006
document Lloyd presented does raise questions about whether Burgess had been
“specifically designated” to sign informations in 2002 as required by Florida law, it
does not prove that he lacked that authority. Nothing in the statutory language
requires a written designation, and nothing in the record demonstrates that the
necessary designation had not been given in another format. In any event, the
formal designation of Burgess to sign informations does not alter the scope of his
office and functions as a prosecutor. Even if we assume that Burgess signed an
information that he should not have, that would not strip him of immunity. See,
e.g., Rowe v. City of Ft. Lauderdale, 279 F.3d 1271, 1279-80 (11th Cir. 2002)
(“[I]t is clear that, even if [a prosecutor] knowingly proffered perjured testimony
and fabricated exhibits at trial, he is entitled to absolute immunity from liability for
doing so.”).
Moreover, Lloyd brought claims against Burgess in Card similar to those he
asserts here, and either did or could have included this claim. See No. 07-14711,
slip op. at 12 (finding Burgess absolutely immune). Either way, the doctrine of res
judicata also bars this claim. See Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235,
1238 (11th Cir. 1999); NAACP v. Hunt, 891 F.2d 1555, 1561 (11th Cir. 1990).
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Lloyd attacks actions of Burgess and Gardner other than the filing of the
information. Those other actions clearly occurred during the initiation and pursuit
of a criminal prosecution. Because neither Burgess nor Gardner acted outside the
scope of an assistant state attorney’s office and duties, the district court correctly
found that the doctrine of prosecutorial immunity bars Lloyd’s suit against them.
2. Judicial Immunity
Lloyd contends that the district court erred when it granted Judge Foster
immunity because the facts and evidence showed that the judge “committed
criminal acts.” Lloyd asserts specifically that Judge Foster conspired to conceal
and plant evidence and to deny hearings. Further, he argues that Judge Foster
allowed Burgess, an “imposter,” to charge and convict Lloyd of the nonexistent
Florida crime of fleeing and attempting to elude a police officer. The district court
granted summary judgment to Judge Foster based on absolute judicial immunity.
“[J]udicial immunity is an immunity from suit, not just from ultimate
assessment of damages.” Mireles v. Waco, 502 U.S. 9, 11, 112 S. Ct. 286, 288
(1991). A judge is entitled to absolute immunity for any acts that are within the
function of the judicial office and loses immunity only if the claimed acts are
wholly outside his jurisdiction as a judge. See Stump v. Sparkman, 435 U.S. 349,
356-57, 362, 98 S. Ct. 1099, 1105, 1107 (1978) (“A judge will not be deprived of
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immunity because the action he took was in error, was done maliciously, or was in
excess of his authority; rather, he will be subject to liability only when he has acted
in the clear absence of all jurisdiction.” (internal quotation marks omitted)); Sibley
v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005). In applying this rule, “the scope
of the judge’s jurisdiction must be construed broadly where the issue is the
immunity of the judge.” Stump, 435 U.S. at 356, 98 S. Ct. at 1105. Noting that a
judge acting “in excess” of his jurisdiction is still entitled to judicial immunity, the
Supreme Court gave the following example:
if a probate judge, with jurisdiction over only wills and estates, should
try a criminal case, he would be acting in the clear absence of
jurisdiction and would not be immune from liability for his action; on
the other hand, if a judge of a criminal court should convict a
defendant of a nonexistent crime, he would merely be acting in excess
of his jurisdiction and would be immune.
Id. at 356 n.7, 98 S. Ct. at 1105 n.7.
Lloyd offers no support for his claims that Judge Foster concealed and
planted evidence. As for denying motions, that task is obviously within the scope
of judicial duties. And since the Supreme Court has clarified that convicting a
defendant of a nonexistent crime, while not ideal, does not abrogate judicial
immunity, that part of Lloyd’s argument fails as well. Because Judge Foster was
acting in his judicial capacity and not in clear absence of jurisdiction, the district
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court correctly concluded that judicial immunity prohibits Lloyd’s claims against
him.
3. Eleventh Amendment Immunity
Lloyd also contends that the district court erred when it granted the State of
Florida’s motion to dismiss because the state waived its immunity against federal
suit when it did not respond to Lloyd’s summary judgment motion. There is no
basis for Lloyd’s argument. The law is to the contrary. Calderon v. Ashmus, 523
U.S. 740, 745 n.2, 118 S.Ct. 1694, 1697 n.2 (1998) (noting that “the Eleventh
Amendment is jurisdictional in the sense that it is a limitation on the federal court's
judicial power, and therefore can be raised at any stage of the proceedings”);
Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363 (1974) (stating that
“the Eleventh Amendment defense sufficiently partakes of the nature of a
jurisdictional bar so that it need not be raised in the trial court”).
Because the district court correctly found that Burgess, Gardner, Judge
Foster, and the State of Florida were all entitled to immunity, we affirm the district
court’s judgments granting each party’s motion to dismiss.
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B.
Our conclusion that the district court properly dismissed Lloyd’s claims
against Burgess, Gardner, Judge Foster, and the State of Florida moots his
argument that they were not entitled to summary judgment.
C.
Lloyd contends that the district court improperly granted jail administrator
King’s motion to dismiss based upon the court’s determination that Lloyd had
failed to exhaust his administrative remedies before filing suit. To support his
position, Lloyd argues for the first time on appeal that he (1) was unable to exhaust
his administrative remedies because the sheriff did not provide jail inmates with
any grievance procedures or remedies; (2) attempted to exhaust his remedies with
the warden at his next prison, but the warden failed to contact the jail; and (3) was
not required to exhaust his administrative remedies because exhaustion would have
been futile.
“Issues raised for the first time in this Court are generally not considered
because the district court did not have the opportunity to consider them.” Leal v.
Ga. Dep’t of Corr., 254 F.3d 1276, 1280 (11th Cir. 2001) (internal quotation marks
omitted) (declining to consider pro se prisoner’s new arguments on appeal); see
also Onishea v. Hopper, 171 F.3d 1289, 1305 (11th Cir. 1999). While we do have
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discretion to consider new arguments in certain circumstances, see Leal, 254 F.3d
at 1280, we decline to exercise it in this case. Further, “[i]ssues not briefed on
appeal, even by a pro se litigant, are deemed abandoned.” Holder v. Nicholson,
No. 07-14561, slip op. at 11 (11th Cir. July 23, 2008) (citing Horsley v. Feldt, 304
F.3d 1125, 1131 n.1 (11th Cir. 2002)); see also Mitschell v. Donald, 213 F. App’x
920, 922 n.1 (11th Cir. 2007). Because each of the arguments Lloyd offers on this
issue either was not timely raised or was abandoned, we affirm the district court’s
judgment granting King’s motion to dismiss.
D.
Lloyd contends that the district court erred when it denied his motion for
default judgment against his former defense attorney Williams and dismissed his
claims against Williams based on improper service of process. This is so because,
according to Lloyd, there was a reasonable possibility that he ultimately would
perfect service upon Williams—despite his implication that Williams made mail
service nearly impossible by purposefully avoiding it. Lloyd also argues that the
district court erred when it dismissed sua sponte parole officer Harrison from the
lawsuit based on his failure to serve her. We review for abuse of discretion a
district court’s dismissal without prejudice of a plaintiff’s complaint for failure to
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timely serve a summons and complaint. Lepone-Dempsey v. Carroll County
Comm’rs, 476 F.3d 1277, 1280 (11th Cir. 2007).
Rule 4 of the Federal Rules of Civil Procedure provides that “the plaintiff is
responsible for service of a summons and complaint within the time allowed under
subdivision (m).” Fed. R. Civ. P. 4(c)(1). Rule 4(m) states that:
If a defendant is not served within 120 days after the complaint is
filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against that
defendant or order that service be made within a specified time. But if
the plaintiff shows good cause for the failure, the court must extend
the time for service for an appropriate period. . . .
Fed. R. Civ. P. 4(m). It is true that a plaintiff may request by mail that a defendant
waive service of summons. Fed. R. Civ. P. 4(d)(1). If the defendant, without good
cause, does not comply with the request for waiver, the court must impose upon the
defendant the costs and expenses later incurred in making the service. Fed. R. Civ.
P. 4(d)(2). The Advisory Committee Notes to Rule 4 clarify, however, that such
communications are requests “for waiver of formal service” and are not service
itself. See Fed. R. Civ. P. 4 advisory committee’s note (1993 amends.). A plaintiff
cannot actually perfect service by mail without the affirmative cooperation of the
defendant. Id.The district court found that Lloyd had failed to provide documents reflecting
proper service of process upon Williams and Harrison. We agree. Although Lloyd
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submitted an undated certified mail receipt showing that someone signed for the
package he sent to Williams’ law office, that person was not Williams. More
importantly, Lloyd offered no evidence that Williams agreed to waive formal
service and accept service by mail. Lloyd similarly furnished nothing to show that
he had served Harrison. The district court, having advised Lloyd when he paid his
filing fee that it would dismiss any defendants he failed to serve within the allotted
timeframe, was well within its discretion to carry out that promise. Lloyd did not
demonstrate good cause for this failure, and despite his conclusory statements
otherwise, the record does not suggest that either Williams or Harrison avoided
service intentionally. Because Lloyd neither personally served nor secured a waiver
of service from either Williams or Harrison, we affirm the district court’s judgment
dismissing his claims against them.
E.
Finally, Lloyd contends that District Judge Adams erred when he denied the
motion for recusal included within Lloyd’s post-decision Motion for Relief From
Judgment or Order. We must evaluate sua sponte our own appellate jurisdiction,
even if the parties have not challenged it. Rinaldo v. Corbett, 256 F.3d 1276, 1278
(11th Cir. 2001).
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According to Rule 3 of the Federal Rules of Appellate Procedure, a notice of
appeal must contain (1) the party taking the appeal; (2) the judgment, order, or part
thereof being appealed; and (3) the court to which the appeal is taken. Fed. R.
App. P. 3(c)(1). We liberally allow appeals from orders not expressly designated
in the notice of appeal, at least where those orders were entered prior to or
contemporaneously with the ones properly designated. McDougald v. Jenson, 786
F.2d 1465, 1474 (11th Cir. 1986). However, we held in McDougald that a notice
of appeal could not establish an intent to appeal from an order that had not yet been
entered when the notice of appeal was filed. Id. (noting that reviewing the merits
of a post-notice order, which the appellee would not have been aware he needed to
brief, would prejudice the appellee). We since have clarified that “Rule 3(c)
requires that a notice of appeal designate an existent judgment or order, not one
that is merely expected or that is, or should be, within the appellant’s
contemplation when the notice of appeal is filed.” Bogle v. Orange County Bd. of
County Comm’rs, 162 F.3d 653, 661 (11th Cir. 1998).
Lloyd submitted his notice of appeal to prison authorities on March 17,
2008, sixteen days before the district court entered its order denying his motion for
recusal on April 2, 2008. He thereafter failed to amend his notice of appeal to
include that order. Under our precedent Lloyd’s notice of appeal could not cover
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an order that was not yet in existence at the time he filed that notice. We therefore
lack jurisdiction to review the merits of the district court’s order denying Lloyd’s
motion for recusal and will dismiss Lloyd’s appeal of that order.
III. CONCLUSION
We DISMISS Lloyd’s appeal from the district court’s order denying his
motion for recusal. We AFFIRM the district court’s judgment in all other respects.
AFFIRMED IN PART, DISMISSED IN PART.
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