USCA11 Case: 21-11172 Date Filed: 07/29/2022 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11172
Non-Argument Calendar
____________________
AVA ELECTRIS CANNIE,
Plaintiff-Appellant,
versus
REFIK WERNER ELER,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:20-cv-01387-HES-JBT
____________________
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2 Opinion of the Court 21-11172
Before WILSON, BRASHER, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Plaintiff Ava Cannie filed this pro se action against her for-
mer criminal defense attorney, Defendant Refik Eler, asserting var-
ious federal constitutional claims arising from Defendant’s alleged
ineffective assistance of counsel. In addition to her complaint,
Plaintiff filed a motion under
28 U.S.C. § 1915(a)(1) to proceed in
forma pauperis. As required when such a motion is filed, the dis-
trict court conducted a frivolity review under
28 U.S.C.
§ 1915(e)(2)(B). Based on its review, the court concluded that
Plaintiff’s complaint did not state a claim upon which relief may be
granted and thus dismissed the case pursuant to Federal Rule
12(b)(6). Plaintiff appeals the dismissal. After a careful review of
the record and the arguments of the parties, we discern no error
and thus AFFIRM.
BACKGROUND
Plaintiff was charged in Duval County, Florida with several
counts of credit card fraud and identity theft. The charges stemmed
from Plaintiff’s use of personal identification information gained
while running her business, Luxury Publishing, Inc., to open credit
cards without the permission of the victims and then making pur-
chases with those cards. Plaintiff’s criminal case is still ongoing. See
State v. Cannie, Fla. 4th Jud. Cir., Case No. 16-2014-CF-009599.
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21-11172 Opinion of the Court 3
Defendant was appointed in April 2017 to represent Plaintiff,
and he served as her criminal defense attorney in the Duval County
case until the state court granted his motion to withdraw in Octo-
ber 2019. During this time period, and in the course of representing
Plaintiff, Defendant filed three separate ex parte motions with the
state court to have Plaintiff evaluated by a psychologist to deter-
mine her competency to stand trial. The state court granted all
three motions, each of which resulted in Plaintiff’s evaluation and
a subsequent order from the state court adjudging Plaintiff incom-
petent and directing her involuntary commitment to the Florida
State Hospital (“FSH”) for treatment to restore competency. Plain-
tiff claims she spent a total of two and a half years in the FSH as a
result of the psychological evaluations that were instigated by De-
fendant’s motions.
To briefly summarize their findings, the psychologists who
evaluated Plaintiff pursuant to Defendant’s motions—Dr. Stephen
Bloomfield in 2017 and 2018 and Dr. Larry Neidigh in 2019—deter-
mined that Plaintiff was incompetent to stand trial because she
could not effectively assist in her defense due either to a delusional
disorder or a bipolar disorder that caused her to engage in persev-
erative and irrational thoughts, including conspiracy theories about
her case. Nevertheless, at the end of each period of commitment, a
report provided by the FSH concluded that Plaintiff had had been
restored to competency and that she should be returned to Duvall
County to proceed with her criminal case. Dr. Neidigh, one of
Plaintiff’s evaluating psychiatrists, expressed concern about the
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4 Opinion of the Court 21-11172
“revolving door” of Plaintiff’s commitment to and release from the
FSH, but he determined there was no other alternative to address
the issues he identified during his competency evaluation.
Plaintiff filed numerous motions to terminate Defendant’s
representation throughout the course of the above proceedings, in
which she complained about Defendant’s inattention to her case as
well as his efforts to have her committed. After Defendant was per-
mitted to withdraw from the case in 2019, Plaintiff filed a civil ac-
tion against Defendant in state court asserting claims based on var-
ious aspects of his legal representation, including his allegedly un-
lawful attempts to have Plaintiff involuntarily committed. See Can-
nie v. Eler, Fla. 4th Jud. Cir., Case No. 2019-CA-7205. The state
court granted Defendant’s motion to dismiss Plaintiff’s claims with
prejudice. However, two days before that order was entered, Plain-
tiff filed a notice of voluntary dismissal without prejudice of those
claims.
Plaintiff subsequently filed the instant complaint in the Mid-
dle District of Florida, in which she asserted several federal consti-
tutional and other claims based on Defendant’s actions while serv-
ing as her criminal defense lawyer in the state proceedings. Specif-
ically, Plaintiff alleged that Defendant violated her Fifth Amend-
ment due process rights and her Sixth Amendment right to effec-
tive assistance of counsel, in addition to committing other viola-
tions that amounted to a breach of his fiduciary duty, defamation,
fraud, and false imprisonment. The essence of Plaintiff’s claims is
that Defendant committed these violations by misrepresenting to
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21-11172 Opinion of the Court 5
the state court and to the psychologists who evaluated her that she
“could not explain her case” to him, resulting in incompetency
evaluations that caused her to be committed to FSH for two and a
half years and thus incur associated damages and loss of profits and
property.
In conjunction with her complaint, Plaintiff filed a motion
to proceed in forma pauperis pursuant to
28 U.S.C. § 1915(a)(1).
When such a motion is filed, the district court is required to review
and dismiss the case if it determines that the action is frivolous, that
it “fails to state a claim on which relief may be granted,” or that it
“seeks monetary relief against a defendant who is immune from
such relief.” See
28 U.S.C. § 1915(e)(2)(B). After reviewing Plain-
tiff’s complaint in this case, a Magistrate Judge took her motion un-
der advisement. Noting that the complaint was “barely compre-
hensible” and that it included more than 300 pages or “seemingly
random” attachments, the Judge directed Plaintiff to file an
amended complaint to satisfy § 1915(e)(2)(B). The Magistrate Judge
warned Plaintiff that he would likely recommend that the district
court deny her in forma pauperis motion and dismiss the case if she
did not comply with that directive.
Plaintiff subsequently filed an amended complaint in which
she again alleged that Defendant, her court appointed criminal de-
fense lawyer in the prior state case, violated her constitutional
rights. Plaintiff acknowledged in her complaint that Defendant
does not work for the state of Florida or any of its agencies, and
that he is “considered a private lawyer” who cannot be held liable
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6 Opinion of the Court 21-11172
to Plaintiff under
42 U.S.C. § 1983 for any alleged malfeasance
while acting as her criminal attorney. Nevertheless, while conced-
ing that Defendant was not subject to liability under § 1983, Plain-
tiff alleged that he could be held directly liable to her for violating
her Fifth Amendment due process rights and her Sixth Amendment
right to effective assistance of counsel, breaching his fiduciary du-
ties to her, and subjecting her to false imprisonment and “illegal
restraint.” As damages, Plaintiff sought to recover lost income,
damages associated with a broken leg she incurred while she was
in the FSH, reputational damages, and personal property losses.
After Plaintiff filed her amended complaint, the Magistrate
Judge issued a report and recommendation (“R&R”) recommend-
ing that Plaintiff’s pro se motion to proceed in forma pauperis be
denied and that her case be dismissed pursuant to
28 U.S.C.
§ 1915(e)(2). The Magistrate Judge explained in the R&R that Plain-
tiff’s amended complaint, even liberally construed, did not cure the
deficiencies of the initial complaint. Specifically, the Magistrate
Judge observed that Plaintiff’s amended complaint, like her initial
complaint, essentially alleged that Plaintiff’s court-appointed attor-
ney in her state criminal case violated her constitutional rights by
instigating the competency evaluations that resulted in her invol-
untary commitment. The Magistrate Judge acknowledged that
Plaintiff’s amended complaint expressly disavowed reliance on
§ 1983, given her concession that Defendant is a private attorney
and not a state actor. But that did not make her claim any more
cognizable, according to the Magistrate Judge, because the federal
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21-11172 Opinion of the Court 7
constitution does not support freestanding claims to remedy its vi-
olation. Instead, any such claims must be brought via § 1983, the
“state actor” requirement of which Plaintiff admittedly could not
satisfy. The Magistrate Judge noted further that the amended com-
plaint still contained the technical deficiencies identified in the first
complaint, such as lengthy and irrelevant attachments.
Plaintiff submitted a timely objection to the R&R in which
she clarified that she was not relying on § 1983 “because lawyers do
not meet the [state action] criteria” of that statute. Instead, Plaintiff
claimed, she intended to sue Defendant directly for his alleged vio-
lation of her Fifth and Sixth Amendment rights and for his “false
restraint/imprisonment” and “malfeasance and lying.” Plaintiff
also charged the Magistrate Judge and the judges in her three other
pending federal cases of being impartial and acting “as the defend-
ant’s attorney.” Finally, Plaintiff suggested that Defendant could be
liable because there is no “federal immunity from state malpractice
liability.”
The district court adopted the R&R in its entirety after con-
ducting a de novo review of the record and pleadings. Pursuant to
its order, the court denied Plaintiff’s motion to proceed in forma
pauperis motion and dismissed her case based on the rationale set
out in the R&R. Plaintiff appeals, arguing that Defendant violated
her Fifth Amendment due process rights and her Sixth Amendment
right to effective assistance of counsel by instigating the compe-
tency evaluations that resulted in her involuntary commitment,
and also that Defendant falsely imprisoned her and committed
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8 Opinion of the Court 21-11172
negligence, malpractice, fraud, and various other acts of “malice”
in the course of his legal representation. 1
DISCUSSION
I. Standard of Review
We review de novo a district court’s sua sponte dismissal of
a complaint under § 1915(e)(2) for failure to state a claim. Henley
v. Payne,
945 F.3d 1320, 1331 (11th Cir. 2019). The language of the
relevant provision of § 1915(e)(2) tracks the language of Federal
Rule of Civil Procedure 12(b)(6), and the same substantive standard
applies. See id. We accept the allegations in the complaint as true
and construe them in the light most favorable to Plaintiff. See To-
lar v. Bradley Arant Boult Commings, LLP,
997 F.3d 1280, 1299
(11th Cir. 2021). Viewed in that manner, a complaint is subject to
dismissal under Rule 12(b)(6) if it does not “contain sufficient fac-
tual matter, accepted as true, to state a claim to relief that is plausi-
ble on its face.”
Id. at 1299–1300 (quoting Ashcroft v. Iqbal,
556
U.S. 662, 678 (2009) (quotation marks omitted)). “A claim is facially
plausible when it is supported by facts that permit a reasonable in-
ference that the defendant is liable for the misconduct alleged.” Id.
at 1300 (quotation marks omitted).
1 After the district court and this Court denied her motion to proceed in forma
pauperis on appeal, Plaintiff submitted the applicable filing fee.
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21-11172 Opinion of the Court 9
This Court construes a pro se litigant’s pleadings liberally,
and we hold such pleadings to a less stringent standard than plead-
ings drafted by an attorney. See United States v. Cordero, 7 F.4t h
1058, 1068 n.11 (11th Cir. 2021) (noting that “pro se pleadings are
liberally construed”). However, the Court “may not serve as de
facto counsel” for a pro se litigant or “rewrite” a deficient pleading.
See id. (quotation marks omitted). Like any complainant, a pro se
plaintiff must include in his complaint enough factual allegations
that “raise a right to relief above the speculative level” to survive a
Rule 12(b)(6) motion to dismiss. See Saunders v. Duke,
766 F.3d
1262, 1266 (11th Cir. 2014) (quotation marks omitted).
II. Plaintiff’s Federal Constitutional Claims
Plaintiff attempts in her complaint to assert claims against
Defendant directly under the Fifth and Sixth Amendments of the
federal constitution. As discussed above, these claims are based on
Defendant’s alleged violation of Plaintiff’s due process rights and
her right to effective assistance of counsel while acting as Plaintiff’s
criminal defense lawyer during her state proceedings. Plaintiff pre-
sumably intends to invoke additional federal constitutional rights
related to certain other claims asserted in her complaint—for ex-
ample, her false imprisonment claim.
As the Magistrate Judge and the district court correctly rec-
ognized, federal constitutional provisions such as the Fifth and
Sixth Amendments do not give rise to a direct cause of action or a
free-standing claim against an individual who allegedly violates
those provisions. See
42 U.S.C. § 1983 (creating a civil right of
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10 Opinion of the Court 21-11172
action to remedy “the deprivation of any rights, privileges, or im-
munities secured by the Constitution and [federal] laws”); Williams
v. Bennett,
689 F.2d 1370, 1390 (11th Cir. 1982) (noting that the
remedial scheme set out by Congress in § 1983 “precludes the im-
plication of a direct constitutional action” for the federal constitu-
tional violations asserted by the plaintiff). Instead, a cause of action
against an individual for an alleged federal constitutional violation
can only be brought pursuant to
42 U.S.C. § 1983. See Williams,
689 F.2d at 1390.
Plaintiff expressly disavows reliance on § 1983, and for good
reason. Section 1983 creates a private cause of action that allows a
plaintiff to recover for the deprivation of a federal right by a person
acting under color of state law. See Focus on the Family v. Pinellas
Suncoast Transit Auth.,
344 F.3d 1263, 1276–77 (11th Cir. 2003) (cit-
ing § 1983 and noting that the provision allows recovery where a
plaintiff can show he was “deprived of a right secured by the Con-
stitution or laws of the United States, and that the alleged depriva-
tion was committed under color of state law”) (quotation marks
omitted). As such, and as Plaintiff acknowledges, § 1983 is unavail-
able here because relief under that statute would require her to
show that (1) Defendant deprived her of a right secured by the
United States Constitution or federal law, and (2) “the alleged dep-
rivation was committed under color of state law.” See id. (quota-
tion marks omitted). It is well-established, that a court-appointed
attorney does not act under color of state law for purposes of
§ 1983. See Polk Cnty. v. Dodson,
454 U.S. 312, 325 (1981) (“[A]
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21-11172 Opinion of the Court 11
public defender does not act under color of state law when per-
forming a lawyer’s traditional functions as counsel to a defendant
in a criminal proceeding.”).
In short, there are no facts in Plaintiff’s complaint that would
support a cognizable claim against Defendant based on his alleged
violation of Plaintiff’s federal constitutional rights while acting as
her criminal defense attorney in her state proceedings. Accord-
ingly, the district court did not err by dismissing Plaintiff’s com-
plaint pursuant to
28 U.S.C. § 1915(e)(2).
III. Plaintiff’s Remaining Claims
We note, out of an abundance of caution, that Plaintiff has
asserted some claims in her complaint that could be construed to
rely on state rather than federal law. For example, Plaintiff alleges
that Defendant breached his fiduciary duty and “defamed and slan-
dered” her. Further, Plaintiff has described her case against Defend-
ant as a “negligence suit.” The district court concluded in its order
that, to the extent Plaintiff’s claims could be construed as state law
claims, she did not allege a basis for the court to assert jurisdiction
over those claims. Plaintiff has not challenged that ruling on appeal
and has thus abandoned the issue. See Timson v. Sampson,
518
F.3d 870, 874 (11th Cir. 2008) (“While we read briefs filed by pro
se litigants liberally, issues not briefed on appeal by a pro se litigant
are deemed abandoned.” (citations omitted)).
Furthermore, we agree with the district court that Plaintiff
did not allege any facts in her complaint that would support the
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12 Opinion of the Court 21-11172
existence of diversity jurisdiction in this case, such that the court
would be obliged to consider Plaintiff’s state claims after having
dismissed federal claims for failure to state a cognizable claim. In-
stead, Plaintiff relies solely
28 U.S.C. § 1331, which establishes fed-
eral jurisdiction in cases that involve a federal question. See
28
U.S.C. § 1331 (stating that federal district courts have “original ju-
risdiction” over “all civil actions arising under the Constitution,
laws, or treaties of the United States”). Accordingly, and assuming
Plaintiff intended to assert any state law claims against Defendant,
we AFFIRM the district court’s ruling dismissing those claims.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
order dismissing Plaintiff’s complaint pursuant to
28 U.S.C.
§ 1915(e)(2)(B) and Federal Rule 12(b)(6) for failure to state a claim
upon which relief may be granted.
