USCA11 Case: 20-14564 Date Filed: 12/27/2021 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14564
Non-Argument Calendar
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GARY BAPTISTE,
Plaintiff-Appellant,
versus
JOHN DOE,
in his individual and official capacity,
JANE DOE,
in her individual and official capacity,
JORDAN MAYES,
in his individual and off,
Defendants-Appellees.
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2 Opinion of the Court 20-14564
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Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:20-cv-61758-RKA
____________________
Before WILSON, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
Gary Baptiste, a federal prisoner proceeding pro se, appeals
the district court’s dismissal of his complaint with prejudice for fail-
ure to state a plausible claim under 28 U.S.C. § 1915(e)(2). Baptiste
alleged in his complaint that three law clerks denied his right to
access the courts by withholding his habeas filings from a federal
district judge, forging the judge’s name, and entering orders deny-
ing relief. On appeal, Baptiste alleges that the district court erred
by both dismissing his complaint with prejudice and denying leave
to amend. For the reasons explained below, we affirm.
I.
We review de novo a district court’s sua sponte dismissal
under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a viable claim
using the same standards that govern dismissals under Federal Rule
of Civil Procedure 12(b)(6). Mitchell v. Farcass,
112 F.3d 1483,
1490 (11th Cir. 1997) (explaining that the language of
§ 1915(e)(2)(B)(ii) tracks the language of Rule 12(b)(6)). We may
affirm a district court’s judgment on any basis supported by the
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20-14564 Opinion of the Court 3
record. Haynes v. McCalla Raymer, LLC,
793 F.3d 1246, 1249 (11th
Cir. 2015).
Section 1915(e) provides, in relevant part, that an in forma
pauperis action shall be dismissed at any time if the court deter-
mines that it “fails to state a claim on which relief may be granted.”
28 U.S.C. § 1915(e)(2)(B)(ii). “[T]he plaintiff is the master of the
complaint,” and we consider “all documents that are attached to
the complaint or incorporated into it by reference” when “deciding
whether a complaint states a claim upon which relief may be
granted.” Gill ex rel. K.C.R. v. Judd,
941 F.3d 504, 511–12 (11th Cir.
2019). Accepting the plaintiff’s factual allegations as true, the com-
plaint must state a claim to relief that is plausible on its face to avoid
dismissal. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A plausible
claim is one that allows a court to draw reasonable inferences that
the defendant is liable for the claim.
Id. A court “draw[s] on its
judicial experience and common sense” in determining whether a
claim is plausible.
Id. at 679. This plausibility requirement “asks
for more than a sheer possibility that a defendant has acted unlaw-
fully.”
Id. at 678. Furthermore, “conclusory allegations, unwar-
ranted factual deductions or legal conclusions masquerading as
facts will not prevent dismissal.” Taylor v. Polhill,
964 F.3d 975,
981 (11th Cir. 2020) (quoting Davila v. Delta Air Lines, Inc.,
326
F.3d 1183, 1185 (11th Cir. 2013)).
Pro se pleadings are liberally construed and held to less strin-
gent standards than those drafted by lawyers, but they must still
suggest, even if inartfully, some factual basis for a claim. Jones v.
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4 Opinion of the Court 20-14564
Fla. Parole Comm’n,
787 F.3d 1105, 1107 (11th Cir. 2015). And this
leniency does not allow a court “to serve as de facto counsel for a
party, or to rewrite an otherwise deficient pleading in order to sus-
tain an action.” Campbell v. Air Jam. Ltd.,
760 F.3d 1165, 1168–69
(11th Cir. 2014) (quoting GJR Invs., Inc. v. Cnty. of Escambia,
132
F.3d 1359, 1369 (11th Cir. 1998)). Additionally, “[w]e have long
held that an appellant abandons a claim when he either makes only
passing references to it or raises it in a perfunctory manner without
supporting arguments and authority.” Sapuppo v. Allstate Florid-
ian Ins. Co.,
739 F.3d 678, 681 (11th Cir. 2014). A party fails to ad-
equately brief an issue “when he does not ‘plainly and prominently’
raise it,” e.g., by only casually raising an issue or by failing to elab-
orate on the issue in his brief’s argument section.
Id. (quoting Cole
v. U.S. Att’y Gen.,
712 F.3d 517, 530 (11th Cir. 2013)); see also Fed.
R. App. P. 28(a)(8)(A) (requiring a brief to contain an “appellant’s
contentions and the reasons for them, with citations to the author-
ities and parts of the record on which the appellant relies”).
A suit brought under 42 U.S.C. § 1983 challenges the consti-
tutionality of the actions of state officials. Abella v. Rubino,
63 F.3d
1063, 1065 (11th Cir. 1995). The Supreme Court has recognized a
similar cause of action for unconstitutional conduct by federal offi-
cials. See Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics,
403 U.S. 388, 389 (1971). In other words, Bivens created
a remedy against federal officers, acting under color of federal law,
analogous to the remedy against state officials provided by § 1983.
See id.; Abella,
63 F.3d at 1065.
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20-14564 Opinion of the Court 5
Litigants enjoy a fundamental right to access the courts,
which “requires that an inmate be provided ‘a reasonably adequate
opportunity to present claimed violations of fundamental constitu-
tional rights to the courts.’” Vanderberg v. Donaldson,
259 F.3d
1321, 1323 (11th Cir. 2001) (quoting Lewis v. Casey,
518 U.S. 343,
351 (1996)). A showing of actual injury is a prerequisite to an in-
mate’s access-to-the-courts claim. Al-Amin v. Smith,
511 F.3d 1317,
1332 (11th Cir. 2008). Actual injury may be established by showing
that “an inmate’s efforts to pursue a nonfrivolous claim were frus-
trated or impeded . . . by an official’s action.” Barbour v. Haley,
471 F.3d 1222, 1225 (11th Cir. 2006). However, because an access-
to-the-courts claim vindicates the separate right to seek judicial re-
lief, the inmate must identify in his complaint a nonfrivolous un-
derlying claim that was affected.
Id. at 1226.
Here, Baptiste abandoned his challenge to the district court’s
dismissal of his case. In its order, the district court focused exclu-
sively on Baptiste’s failure to allege facts plausibly supporting one
element of his access-to-the-courts claim—that the law clerks im-
peded his ability to present a claim. Baptiste has not presented any
argument on appeal about that finding and instead argues only
about the viability of his underlying ineffective assistance of coun-
sel claim. He thus abandoned his challenge to the dismissal of his
case for failure to state a plausible access-to-the-courts claim.
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6 Opinion of the Court 20-14564
II.
We review for abuse of discretion a district court’s decision
to deny leave to amend a complaint. Woldeab v. Dekalb Cnty. Bd.
of Educ.,
885 F.3d 1289, 1291 (11th Cir. 2018).
A pro se plaintiff must be given at least one chance to amend
his complaint before the district court dismisses the action with
prejudice unless amendment would be futile. Silberman v. Mia.
Dade Transit,
927 F.3d 1123, 1132–33 (11th Cir. 2019). “Leave to
amend would be futile if an amended complaint would still fail at
the motion-to-dismiss or summary-judgment stage.” L.S. ex rel.
Hernandez v. Peterson,
982 F.3d 1323, 1332 (11th Cir. 2020). A dis-
trict court does not abuse its discretion by denying leave to amend
as futile where a plaintiff fails to identify any new facts that might
form the basis for stating a claim successfully. Vanderberg,
259 F.3d at 1326–27. Additionally, “[a] district court may find futil-
ity if a prerequisite to relief ‘is belied by the facts alleged in the com-
plaint.’” Peterson, 982 F.3d at 1332 (quoting Surtain v. Hamlin Ter-
race Found.,
789 F.3d 1239, 1248 (11th Cir. 2015)).
Here, the district court did not abuse its discretion by deny-
ing Baptiste leave to amend on the basis that any amendment to
the complaint would have been futile. What Baptiste now says he
would have added to an amended complaint—naming Judge James
Cohn as a defendant and explaining how Judge Cohn failed to re-
solve his ineffective assistance of counsel claim—has nothing to do
with the alleged law clerk misconduct and would not make his
claim against them more plausible. Moreover, these amendments
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20-14564 Opinion of the Court 7
could not state a plausible claim against Judge Cohn because Bap-
tiste says that claim would be that Judge Cohn’s order did not re-
solve all the § 2255 claims he presented rather than that he did not
have a reasonably adequate opportunity to present those claims to
the court.
III.
Accordingly, for the reasons stated above, we affirm the dis-
trict court’s dismissal of Baptiste’s complaint
AFFIRMED.
