McMahon v. Cleveland Clinic Foundation Police Department , 455 F. App'x 874 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14578 OCT 4, 2011
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 2:06-cv-00179-CEH-SPC
DANIEL W. MCMAHON,
lllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
CAROLYN STEPP,
llllllllllllllllllllll llllllllllPlaintiff,
versus
CLEVELAND CLINIC FOUNDATION
POLICE DEPARTMENT, et al.,
lllllllllllllllllllDefendants,
JOSE LOPEZ,
DON HUNTER,
individual,
LYNN ANN GIZZI,
DAVID JOLICOEUR,
SANDY LEE HURTADO,
Dispatcher on 7/1/08, et al.,
lllllllllllllllllllllllllllllllDefendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 4, 2011)
Before HULL, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Daniel McMahon, a private citizen proceeding pro se, appeals the district
court’s dismissal of his third amended complaint filed against numerous individual
defendants, the court’s denial of his motion for an emergency injunction and
temporary restraining order, and the court’s denial of his request to receive
electronic notification of court filings. After a thorough review of the record, we
affirm.
I.
This case arises from McMahon’s several arrests in connection with his
interaction with the staff and security officers of the Cleveland Clinic in Naples,
Florida, in 2003 and 2004. In April 2006, McMahon filed a complaint against
numerous named defendants, including the Cleveland Clinic, the Collier County
Sheriff’s Office (“CCSO”), the Office of the State Attorney for the 20th Judicial
Circuit of Florida (“State Attorney’s Office”), and several individual employees of
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those organizations, including CCSO Deputy Jose Lopez, alleging violations of 42
U.S.C. §§ 1983, 1985, and 1986, the Fifth and Fourteenth Amendments, and state
law claims of malicious prosecution and malicious abuse of process.
Thereafter, the court struck McMahon’s complaint as a “shotgun pleading,”
noting that McMahon’s allegations were “rambling, disorganized, predominately
incoherent and peppered with irrelevancies.” The court allowed McMahon to file
an amended complaint and instructed him to plead his allegations “in a concise,
coherent manner that sets forth recognized causes of action in numbered counts
against specific defendants that remain parties to this action.”
McMahon filed an amended complaint, which alleged similar facts
regarding his arrests, but named fewer defendants. McMahon’s factual allegations
regarding his two arrests were similar to those set forth in his initial complaint.
McMahon then filed a motion to amend his complaint to add claims arising
out of events involving the SWAT team and his wife in July 2008. The court
granted the motion to amend, and McMahon filed a second amended complaint
against numerous CCSO employees and several unnamed “John Doe” CCSO
employees. The second amended complaint totaled 73 pages and contained 23
pages of general allegations and 43 counts, reasserting similar facts to the first two
complaints regarding his first two arrests, but adding numerous facts relating to his
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July 2008 arrest by the SWAT team at his house. Then Sheriff Kevin Rambosk
filed a motion for a more definite statement, arguing that the convoluted nature of
the second amended complaint did not put him on notice as to what claims
McMahon had filed against him or the other defendants, or under what theory of
law those claims were presented. After holding a status conference, the court
ordered McMahon to file a third amended complaint.
Accordingly, McMahon filed a third amended complaint, which was 258
pages long, divided into 34 pages of “General Allegations,” and included 213
specific counts. This complaint named 18 defendants and 17 “John Doe”
defendants, all employees of the CCSO. In the “General Allegations” section,
McMahon realleged the same basic facts that had supported his prior three
complaints. McMahon’s 213 counts alleged (1) federal claims of malicious
prosecution, interference and retaliation under the Americans with Disabilities Act
(ADA), conspiracy, false arrest, false imprisonment; (2) state law claims of
malicious prosecution, intentional and negligent infliction of emotional distress,
trespassing, false imprisonment, false arrest; (3) constitutional violations of his
First and Fourth Amendment rights, due process rights, and right to privacy; and
(4) violations under Florida’s Sunshine Law, Fla.Stat.Ann. § 119.07. These
specified counts did not incorporate or refer back to any of the factual allegations
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provided in the “General Allegations” section and did not contain any factual
detail themselves.
As the case progressed, McMahon filed (1) a motion to receive electronic
notification of court filings so that he could have a longer period of time to
respond, and (2) an emergency motion for injunctive relief and a restraining order
against the CCSO and 20th Judicial Circuit, alleging that he was forced to leave
the country because of death threats made by agents of the CCSO and “most
likely” the 20th Judicial Circuit. The court denied both motions, finding that there
was no good cause to allow McMahon access to electronic notification or filing,
and that McMahon had failed to satisfy the requirements of Fed.R.Civ.P. 65(b)
and the court’s local rules to be entitled to an injunction or restraining order.
Upon the recommendation of a magistrate judge, and over McMahon’s
objections, the district court concluded that the third amended complaint was “a
shotgun pleading that is due to be dismissed because the litany of facts and
numerous counts are disjointed and incoherent.” Accordingly, the district court
dismissed the complaint without prejudice. This is McMahon’s appeal.
II.
On appeal, McMahon challenges the district court’s dismissal of his third
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amended complaint, the denial of his request for injunctive relief, and the denial of
access to the electronic filings. We address each issue in turn.
A. Dismissal of the Third Amended Complaint
We review a district court’s dismissal for failure to comply with the court’s
rules for abuse of discretion. Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d
1333, 1337 (11th Cir. 2005). We also review a dismissal under Fed.R.Civ.P. 41(b)
for abuse of discretion. Gratton v. Great Am. Commc’ns, 178 F.3d 1373, 1374
(11th Cir. 1999). Rule 41(b) allows a defendant to move to dismiss the action “[i]f
the plaintiff fails to prosecute or to comply with these rules or a court order.”
Fed.R.Civ.P. 41(b). Despite the plain language of Rule 41(b) indicating that a
defendant may move for dismissal, a district court may sua sponte dismiss a case
under the authority of either Rule 41(b) or the court’s inherent power to manage its
docket. Betty K Agencies, Ltd., 432 F.3d at 1337. “While dismissal is an
extraordinary remedy, dismissal upon disregard of an order, especially where the
litigant has been forewarned, generally is not an abuse of discretion.” Moon v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
Although we construe pleadings filed by pro se parties liberally, Alba v.
Montford, 517 F.3d 1249, 1252 (11th Cir. 2008), this “does not give a court
license to serve as de facto counsel for a party, or to rewrite an otherwise deficient
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pleading in order to sustain an action.” GJR Invs., Inc. v. Cnty. of Escambia, Fla.,
132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted), overruled on other
grounds, see Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010).
Rule 8 of the Federal Rules of Civil Procedure requires that “[a] pleading
that states a claim for relief must contain . . . a short and plain statement of the
claim showing that the pleader is entitled to relief,” and that “[e]ach allegation
must be simple, concise, and direct.” Fed.R.Civ.P. 8(a)(2), (d)(1). “[T]he
statement need only give the defendant fair notice of what the . . . claim is and the
ground upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197,
2200, 167 L.Ed.2d 1081 (2007) (ellipses in original). With this in mind, we have
routinely condemned “shotgun” pleadings. Davis v. Coca-Cola Bottling Co.
Consol., 516 F.3d 955, 979 & n.54 (11th Cir. 2008). A “shotgun pleading” is a
pleading that “incorporate[s] every antecedent allegation by reference into each
subsequent claim for relief or affirmative defense.” Wagner v. First Horizon
Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir. 2006). Shotgun pleadings make it
“virtually impossible to know which allegations of fact are intended to support
which claim(s) for relief.” Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll.,
77 F.3d 364, 366 (11th Cir. 1996).
In this case, the district court did not abuse its discretion in dismissing
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McMahon’s third amended complaint without prejudice because it was a shotgun
pleading filed in violation of the court’s order.1 Further, McMahon filed defective
amended complaints despite having received notice of the pleading requirements
and a warning that the court would not tolerate shotgun pleadings after it
dismissed his original complaint for similar deficiencies.
Because of McMahon’s continued noncompliance with the Federal Rules of
Civil Procedure and the court’s order to file a proper third amended complaint, the
district court did not abuse its discretion in dismissing his action.
B. Denial of Injunctive Relief2
We review the decision to deny a preliminary injunction for abuse of
discretion, reviewing the district court’s findings of fact for clear error and its
legal conclusions de novo. Scott v. Roberts, 612 F.3d 1279, 1289 (11th Cir. 2010).
1
A dismissal without prejudice is tantamount to a dismissal with prejudice when the plaintiff
is barred from refiling his complaint by the statute of limitations. Burden v. Yates, 644 F.2d 503,
505 (5th Cir. Unit B 1981). Dismissal with prejudice is “a drastic remedy to be used only in those
situations where a lesser sanction would not better serve the interests of justice.” Id. Although the
statute of limitations has run with respect to McMahon’s claims arising in 2003 and 2004, which
effectively means that those claims have been dismissed with prejudice, the sanction did not amount
to abuse of discretion here because McMahon jeopardized those claims by filing two defective
complaints that added numerous new defendants and claims to his complaint after the statute of
limitations had run on those claims.
2
Although the appellees argue that we lack jurisdiction because McMahon failed to specify
this issue in his notice of appeal, we disagree. “[T]he appeal from a final judgment draws in
question all prior non-final orders and rulings which produced the judgment.” Barfield v. Brierton,
883 F.2d 923, 930 (11th Cir. 1989).
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The grant of “a preliminary injunction in advance of trial is an extraordinary
remedy.” Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011). A district
court may grant injunctive relief only if the moving party shows that:
(1) [it has] a substantial likelihood of success on the merits; (2)
irreparable injury will be suffered unless the injunction issues; (3) the
threatened injury to the movant outweighs whatever damage the
proposed injunction may cause the opposing party; and (4) if issued,
the injunction would not be adverse to the public interest.
Id. If the plaintiff fails to show a substantial likelihood of success on the merits,
the court need not consider the other requirements. Id.Additionally, the version of Fed.R.Civ.P. 65 in effect at the time of
McMahon’s motion for a temporary restraining order stated that:
[t]he court may issue a temporary restraining order without written or
oral notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly
show that immediate and irreparable injury, loss, or damage will
result to the movant before the adverse party can be heard in
opposition; and
(B) the movant’s attorney certifies in writing any efforts made to
give notice and the reasons why it should not be required.
Fed.R.Civ.P. 65(b) (2008).
Here, we conclude that the district court did not abuse its discretion in
denying McMahon’s motion for a temporary restraining order because he failed to
provide any of the information required by Rule 65(b). Fed.R.Civ.P. 65(b) (2008).
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Furthermore, it is clear that McMahon did not allege, much less satisfy the burden
of persuasion in proving, that his claim had a substantial likelihood of success on
the merits, which is a prerequisite to the grant of a preliminary injunction.
Bloedorn, 631 F.3d at 1229.
C. Denial of Electronic Notification of Court Filing
We give “great deference to a district court’s interpretation of its local
rules” and review “a district court’s application of its local rules for an abuse of
discretion.” Mann v. Taser Intern., Inc., 588 F.3d 1291, 1302 (11th Cir. 2009).
To satisfy the abuse of discretion standard, a plaintiff must show that the district
court made a clear error of judgment. Id.The Middle District of Florida local rules state that the court “may prescribe
by administrative order procedures for electronic filing and related matters in civil
and criminal cases. The administrative order shall govern, notwithstanding these
rules, which otherwise will govern to the extent not inconsistent with the
administrative order.” M.D. Fla. L.R. 1.01. The Middle District’s administrative
procedures regarding the CM/ECF system state that “[u]nless authorized to file
electronically, a pro se filer shall file any pleading and other paper in paper format.
If authorized to file electronically, the pro se filer must follow these procedures.”
“CM/ECF Administrative Procedures,” Middle District of Florida, Mar. 15, 2007,
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at 10.
In this case, the court did not abuse its discretion in denying McMahon
access to CM/ECF to receive electronic notifications, as it found no good cause
under the circumstances of the case to authorize his access.
For the foregoing reasons, we affirm.
AFFIRMED.
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